UNIVERSITY  OF  CALIFORNIA 
AT   LOS  ANGELES 


THE  GIFT  OF 

MAY  TREAT  MORRISON 

IN  MEMORY  OF 

ALEXANDER  F  MORRISON 


NISI  PRIUS 


NISI  PRIUS 


BY 

J.  C.  BROWDER 
'» 

OF   THE   LOGAN    COUNTY    <KY.)    BAR 


NEW  YORK 
THE  NEALE  PUBLISHING  COMPANY 

1912 


Copyright,  191*,  by 

The  Neale  Publishing  Company 


TO 
THE  COUNTRY  LAWYER 

A  SPECIALIST  IN  ALL  BRANCHES  OF  A  VAST 

AND  ILLIMITABLE  SCIENCE,  THESE  PAGES  ARE 

AFFECTIONATELY   INSCRIBED 


OS 

I 


K. 

2 
u. 
O 


4SOG3G 


PREFACE 

To  the  Bench  and  Bar  these  desultory  chapters  are, 
with  more  or  less  trepidation,  respectfully  submit 
ted.  They  were  prepared  at  odd  moments  and  un 
der  circumstances  well  calculated  to  hinder  and  im 
pair  consistent  effort  in  such  a  line  of  endeavor. 
It  will  be  accepted  as  axiomatic  that  the  Law  is  a 
jealous  mistress  and  will  not  brook  a  division  of 
homage.  Even  as  one  cannot  serve  God  and  Mam 
mon,  you  cannot  serve  the  Law  and  —  anything 
else.  This  is  said,  not  by  way  of  apology,  but  in 
explanation  of  the  many  imperfections  and  short 
comings  which  have  found  place  in  this  volume. 

As  to  the  venue,  no  less  than  to  the  personal 
identity  of  those  who  appear  in  this  chronicle,  a 
prefatory  word  may  not  be  out  of  place. 

Mecklenberg  County  will  not  be  found  on  the 
map  of  Kentucky;  nor  does  its  seat  of  government, 
the  town  of  Greenwood,  appear  there.  Neverthe 
less,  the  author  gives  assurance  most  respectfully 
that  both  Mecklenberg  County  and  the  town  of 
Greenwood  are  very  much  in  Kentucky,  and  have 
intertwined  themselves  into  her  history  from  the 
early  infancy  of  the  Commonwealth. 

Touching  the  personal  identity  of  those  who 
grace  the  pages  of  this  history,  a  more  difficult 
and  delicate  task  is  presented.  Realism  and  Fic 
tion  by  joint  and  common  effort  have  created  them. 
That  there  may  be  no  offense,  in  case  any  individ- 


PREFACE 

ual  should  look  into  this  mirror  and  recognize  him 
self,  it  is  here  said  that  those  things  that  compli 
ment  are  but  Realism,  while  all  else  is  Fiction  pure 
and  simple. 

J.  C.  B. 

RUSSELLVILLE,    KY,, 

June,  1912. 


CHAPTER  I 

THE  June  term  of  the  Mecklenberg  County  Circuit 
Court  convened  on  the  first  Monday  in  that  month 
of  months.  As  a  rule  the  term  did  not  extend  over 
a  period  greater  than  three  weeks,  although  under 
the  law  of  the  Commonwealth  four  weeks  were  al 
lotted  for  that  sitting  of  the  court.  At  the  time  of 
this  chronicle  there  was  no  extraordinary  litigation 
on  the  docket  calculated  to  extend  the  term  be 
yond  its  usual  period.  Its  duration,  however,  de 
pended  upon  the  dispatch  of  business  and  the  many 
other  innumerable  contingencies  so  well  understood 
by  the  profession  and  so  thoroughly  unappreciated 
and  contemned  by  the  laity. 

On  this  first  Monday  in  June,  in  a  good  year 
that  shall  be  nameless,  all  was  in  readiness  for  the 
opening  of  court.  Old  Uncle  Toby,  the  janitor  of 
the  somewhat  ancient  temple  of  justice,  had,  as  was 
his  unbroken  custom  thrice  each  year,  swept  out 
the  building,  sprinkled  fresh  water  over  the 
gummed  plank  floor,  and  added  new  sawdust  to 
many  small  square  wooden  boxes,  which  useful  and 
time-honored  receptacles  stood  ready  and  willing 
to  receive  and  absorb  an  unlimited  quantity  of  am 
ber  fluid  aimed  at  them  with  uncommon  accuracy 
by  lawyers,  parties,  officers,  and  spectators.  Un 
cle  Toby  was  a  decrepit  and  bent  old  darkey  be 
longing  to  that  period  in  the  nation's  history  styled 
by  some  philosophers  as  our  elder  and  better  day. 


io  NISI  PRIUS 

He  had  .held. fris  .important  position  many,  many 
years.,*'.  jKfe  pfece.cf  himself- -.en  somewhat  of  a  lofty 
pedestal  and,  once  having  reached  the  topmost 
height,  did  not  scruple  to  scorn  the  base  level  from 
which  he  had  ascended.  The  other  darkies  in  town 
regarded  circuit  court  as  a  thing  consisting  of  the 
judge,  the  Commonwealth's  attorney,  and  Uncle 
Toby.  It  must  be  owned  that  Uncle  Toby's  bear 
ing  and  his  disdain  of  the  members  of  his  own  race 
were  responsible  for  this  view  among  them.  He 
had  served  many  a  day  in  his  important  post.  The 
younger  members  of  the  bar  could  not  recall  the 
court-house  at  all  without  connecting  Uncle  Toby 
with  it.  Those  at  the  bar  who  had  reached  middle 
age  knew  him  at  the  time  they  were  licensed,  and 
the  oldest  practitioners  said  that  he  was  there  when 
they  began  their  careers  back  in  the  obscure  past. 

This  first  Monday  was  a  typical  June  day  in 
Kentucky.  The  freshening  breeze  stirred  softly 
through  the  great  oaks  and  maples  in  the  old  court 
house  yard.  The  song  of  birds  came  from  the  thick 
foliage  of  the  clustering  trees,  and  the  cooling  shade 
afforded  an  inviting  resting  place. 

These  trees,  aged  sentinels  of  this  house  of  law, 
by  their  very  dignity  commanded  the  visitor  to 
pause  and  reflect.  Throughout  the  fleeting  years 
they  had  been  dumb  auditors  to  tragedy  and  com 
edy  alike,  and  through  their  great,  overhanging 
boughs  had  been  wafted  to  high  heaven  the  mighty, 
irresistible  eloquence  of  forensic  orator  and  advo 
cate.  In  the  iron  days  of  ante-bellum  tempests  im 
passioned  appeals,  that  made  the  old  rafters  shake, 


NISI  PRIUS  ii 

had  echoed  through  their  soft  and  quiet  leaves. 
Human  life  had  been  demanded  of  twelve  men, 
sitting  in  a  semi-circle,  in  thunder  tones;  gallows 
had  yawned  and  murdered  under  their  protecting 
shade.  Yet,  unmoved  had  they  stood,  oblivious 
to  the  shock  of  many  a  winter's  blast  and  unre 
sponsive  to  eloquence  and  oratory  —  in  days  when 
there  was  oratory,  the  kind  that  made  men  for 
sake  home  and  perish,  smilingly,  in  the  din  and 
roar  of  war. 

People  were  coming  into  town,  horse-back,  mule- 
back,  in  wagons,  buggies,  and  in  other  more  or 
less  motley-looking  vehicles.  The  public  water 
sprinkler  had  performed  its  morning  service,  and 
the  main  street,  which  ran  through  the  center  of 
the  town,  had  a  fresh  and  clean  and  cool  appear 
ance.  The  hitching  rail,  directly  in  front  of  the 
court-house,  on  the  public  square,  an  unmistakable 
monument  of  another  age,  was  already  being  taken 
advantage  of,  and  lazy  mules  and  horses  were  idly 
lashing  ambitious  flies  with  their  busy  tails. 

The  presiding  judge  resided  in  another  county 
in  the  district.  He  was  not  due  to  arrive  in  Green 
wood  until  noon,  the  train  on  which  he  usually 
came  being  due  at  that  hour.  He  reached  there  at 
twelve  o'clock,  had  dinner  with  his  friend  and  host, 
Jim  Hanna,  the  dignified  and  altogether  unique 
proprietor  of  the  "  best  hotel  in  town,"  opened 
court  at  one  o'clock,  organized  and  charged  the 
grand  jury,  called  and  set  for  trial  the  common  law 
docket,  heard  a  few  preliminary  motions  and  ad 
journed  court  until  the  following  day,  when  the 


12  NISI  PRIUS 

usual  grind  began,  commencing  with,  and  complet 
ing,  the  criminal  docket  before  going  into  the  civil 
causes. 

Judge  Cole  and  Captain  Henry,  two  leaders  of 
the  local  bar,  each  with  a  practice  more  or  less 
grand,  peculiar,  and  unique,  had  been  engaged  in 
their  usual  occupation  of  pitching  horseshoes  in  the 
court-house  yard.  It  occurred  to  Judge  Cole,  after 
he  had  worsted  his  worthy  opponent  in  several 
contests,  that  he  had  not  yet  prepared  his  "  trial 
docket." 

He  therefore  straightway  repaired  to  the  office 
of  the  circuit  court  clerk  for  the  purpose  of  tak 
ing  a  memorandum  of  his  cases.  He  was  coun 
sel  in  many  causes,  either  expressly  or  by  neces 
sary  implication.  The  Judge,  on  reaching  the 
clerk's  office,  drew  from  his  pocket  a  small  mem 
orandum  book,  such  as  enterprising  commercial 
companies  issue  and  send  broadcast  as  advertise 
ments,  and  at  once  began  to  jot  down  his  cases, 
taking  with  great  deliberation  the  exact  style  and 
number  of  each. 

Now  the  Judge  would  never  rise  to  his  feet  and 
make  a  motion  in  any  cause  unless  he  had  his  "  pri 
vate  docket "  in  his  hand.  When  at  motion  hour 
any  member  of  the  bar  entered  a  motion  of  any 
kind,  in  any  case  in  which  the  Judge  chanced  to  be 
counsel,  it  was  his  invariable  and  unbroken  habit 
to  remark,  adjusting  his  rather  wise  appearing 
glasses :  "  Pardon  me,  your  Honor ;  allow  me  to 
examine  my  private  docket  —  yes,  yes,  I  object  to 
that  motion,  may  it  please  the  Court."  So  many, 


NISI  PRIUS  13 

many  times  had  the  presiding  judge  heard  this 
declaration  coming  from  the  profound  Cole,  that 
his  sense  of  humor,  of  which  he  had  more  than  a 
fair  proportion,  prompted  him  on  several  occasions 
to  inquire  of  the  attorney :  "  What  is  the  ground 
of  the  objection?"  Removing  his  glasses  and 
looking  intently  out  the  window,  with  knitted  brow 
Judge  Cole  uniformly  replied,  with  something  of  a 
bow:  "  My  grounds  of  objection,  may  it  please  the 
Court,  are  that  the  motion  is  not  well  taken."  At 
which  utterance  the  Court  frequently  was  forced  to 
seek  refuge  behind  a  certain  vase  with  flowers  that, 
thanks  to  the  jailer's  wife,  was  always  on  the 
bench. 

Judge  Cole,  at  the  time  of  this  narrative,  was 
counsel  for  the  sheriff  of  the  county.  The  sheriff 
invariably  sought  Cole's  legal  opinion  on  such  im 
portant  matters  as  preparing  his  returns  on  sum 
mons  and  subpoenas  and  certain  other  complex  and 
profound  duties  devolving  upon  the  shoulders  of 
that  high  functionary.  Captain  Henry  had  been 
the  official  attorney  for  the  preceding  sheriff,  and 
that  member  of  the  Mecklenberg  County  bar  could 
not  at  all  appreciate  the  judgment  and  wisdom  of 
the  present  sheriff  in  the  matter  of  his  choice  of 
counsel.  Captain  Henry  had  in  years  agone  been 
the  sheriff  of  the  county  himself  and,  as  he  in 
variably  "  surmised,"  was  not  only  learned  in  the 
law  as  a  lawyer,  but  he  had  this  learning  supple 
mented  by  experience  acquired  in  the  actual  admin 
istration  of  the  shrievalty  itself.  Judge  Cole,  how 
ever,  be  it  said  to  his  credit,  had  been  county  judge 


14  NISI  PRIUS 

years  ago  and  was  likewise  familiar  with  all  "  fiscal 
matters  "  connected  with  the  office  of  sheriff. 

The  reader's  pardon  is  asked  for  dwelling  at  such 
length  upon  Judge  Cole  and  Captain  Henry,  for 
there  were  other  members  of  the  bar  with  whose 
personality  this  narrative  shall  treat  and  other  per 
sons  outside  the  charmed  circle  with  whom  this 
tale  shall  deal.  But  the  Judge  and  the  Captain, 
being  persons  of  no  little  importance,  deserve  a 
place  in  this  history  in  consonance  therewith. 

There  was  Bill  Scott,  an  attorney  who  insisted 
upon  looking  upon  a  certain  well-known  fluid  when 
it  was  red,  and  who  insisted  on  imbibing  too  freely 
when  in  the  midst  of  his  most  "  important  cause." 
Years  ago,  Scott  had  thrown  off  the  mask  and  now 
made  no  concealment  of  the  fact  that  he  believed 
in  "  going  after  business."  When  a  suit  was  in 
stituted,  the  luckless  defendant  in  some  way  acci 
dentally  ran  across  Scott,  who  by  the  purest  chance 
had  had,  not  long  previous,  a  case  exactly  resem 
bling  the  one  in  question,  and  had  actually  gained 
it  on  a  little  point  that  he  didn't  "  put  everybody 
next  to."  And  when  an  unhappy  (or  happy)  in 
dividual  was  injured  by  some  heartless  and  ruth 
less  octopus,  formerly  known  as  corporation,  Scott 
generally  heard  first  the  doctor's  diagnosis  of  the 
injury.  If  inadvertently  no  physician  had  been 
considered  needed  by  the  injured  man,  very  soon 
Scott  had  the  fellow  on  his  back  and  had  a  doctor 
at  his  "  bed  of  pain  and  affliction."  It  was  common 
talk,  and  of  general  acceptance,  that  Scott  had  put 
more  men  to  bed  by  his  wise  and  prudential  coun- 


NISI  PRIUS  15 

sel  than  had  any  physician  in  active  practice  in  the 
county.  No  counsel  for  the  defense  in  any  of  Mr. 
Scott's  cases  had  ever  been  able  to  say  to  a  jury, 
"  Why,  gentlemen,  if  this  man  had  been  really  in 
jured,  why  did  he  not  have  a  doctor  and  why  did 
he  not  go  to  bed  ?  "  Once,  years  ago,  it  was  re 
ported,  Scott  got  caught  on  that  proposition  —  but 
only  once,  and  no  more. 

Scott  it  was,  who,  at  a  previous  term,  had  con 
vulsed  the  court  by  a  unique  and  altogether  frank 
request.  One  fine  morning,  when  motion  hour  was 
well  under  way,  it  was  whispered  about  the  court 
room  that  a  wreck  had  occurred  at  the  Illinois 
Central  Railroad  depot.  Scott,  restless  and  anx 
ious  to  get  to  the  scene,  was  unable  to  conceal  his 
anxiety.  Suddenly  he  arose  and  moved  the  court 
to  suspend  for  an  hour  "  to  give  every  lawyer  a 
fair  chance." 

Passing  on  to  the  other  members  of  the  bar, 
there  was  Colonel  Stevens,  a  splendid  type  of  the 
Kentucky  lawyer.  The  Colonel  had  a  large  and 
compensating  practice,  and  was  counsel  for  one 
side  or  the  other  in  every  important  case  in  the 
county.  He  numbered  banks,  coal  mines,  and  rail 
roads  and  many  others  of  the  soulless  in  his  client 
age.  Lawyers,  courts,  and  the  public  generally  en 
tertained  a  high  regard  for  the  Colonel  both  pro 
fessionally  and  personally.  He  eschewed  the 
criminal  practice.  It  was  not  to  his  taste. 

Tom  Henderson,  a  younger  man,  of  somewhere 
near  two-and-thirty  years,  was  foremost  in  that 
section  of  the  State  as.  a  jury  lawyer,  and  the  older 


16  NISI  PRIUS 

members  of  the  bar  looked  upon  him  as  of  great 
promise.  Born  and  reared  in  Kentucky,  he  had 
inherited  and  absorbed  a  goodly  quantity  of  native 
Kentucky  eloquence  and  was  an  orator  of  great 
force  and  weight  before  any  jury  or  audience.  A 
good  common  school  education,  a  few  years  at  col 
lege,  rounding  out  with  two  years  in  the  law  school, 
had  prepared  him  for  the  profession.  He  was  the 
senior  member  of  the  firm  of  Henderson  &  Brown- 
low.  Brownlow,  a  quiet,  modest,  accurate  student, 
was  developing  into  what  is  known  as  a  first-class 
office  lawyer.  He  had  persistently  refused  to  make 
a  jury  speech  and  so  long  had  he  delayed  breaking 
the  ice  that  now  what  at  the  beginning  would  have 
been  a  trivial  task,  was  an  impossible  thing  for  him 
to  accomplish.  As  an  investigator  of  authorities 
and  as  a  pleader  he  was  unexcelled  at  the  bar. 
The  firm  of  Henderson  &  Brownlow  therefore 
made  a  successful  and  paying  combination. 

Marcellus  Jumpus,  another  light,  was  more  of  an 
"  advisory  counsel "  than  anything  else.  He  did 
not  attempt  to  practice  a  case  unassisted.  If  a  mine 
explosion  occurred,  Marcellus  was  early  on  the 
scene,  confidentially  suggesting  to  bereaved  widows 
and  to  injured  employees  that  he  had  a  "  cer 
tain  fine  lawyer,  a  trial  lawyer,  in  mind,  who 
could  take  this  case  and  make  things  hum,"  and 
that  if  he,  Marcellus,  were  given  the  case  he  would 
not  only  throw  his  entire  soul  and  head  into  the 
case,  but  he  would  obtain  "  able  counsel  to  really 
take  the  lead  in  the  court-house,  while  I  do  the 
quiet,  valuable  work  on  the  outside."  Jumpus  had 


NISI  PRIUS  17 

profited  by  this  method  on  several  occasions.  He 
found  it  a  better  business  getter  than  practicing 
alone,  and  then,  of  prime  importance,  he  avoided 
the  deep  waters  at  nisi  prius. 

Old  Judge  Thompson,  formerly  a  member  of  the 
bar  of  Harris  County,  had  practiced  at  the  Meck- 
lenberg  County  bar  for  twenty-odd  years.  He  had 
a  receding  forehead,  a  rather  small,  drawn  mouth, 
and  a  voice  that  always  kept  a  high  key.  He  was 
strong  on  the  ethics  of  the  profession;  believed  de 
voutly  in  the  courtesies  due  from  one  lawyer  to 
another;  never  missed  a  meeting  of  the  Bar  Asso 
ciation,  uniformly  making  several  speeches  before 
that  body  on  "  the  ethics  of  the  profession."  Be 
lieving  that  it  was  a  courtesy  due  the  court,  he 
always  made  from  three  to  ten  motions  at  every 
sitting  thereof.  He  could  not  be  driven  from  a 
position  unless  perchance  his  opponent  happened  to 
be  a  visiting  lawyer,  in  which  event  his  desire  to  be 
courteous  to  the  foreigner  almost  compelled  him 
to  confess  the  correctness  of  his  adversary's  theory. 
On  several  occasions  he  had  been  chosen  special 
judge  in  some  causes  in  which  the  regular  judge 
was  disqualified.  At  these  times  he  assumed  the 
bench  with  rare  dignity  and  pomp,  always  wearing 
a  long  Prince  Albert  coat  and  white  waistcoat,  and 
brooking  no  delays  or  nonsense  in  his  court,  pre 
serving  a  pose  and  decorum  that  would  have  put 
Lord  Mansfield  to  shame. 

In  his  practice  he  was  noted  for  citing  absent 
authorities.  Invariably  he  referred  to  a  case  "  di 
rectly  in  point,"  and  that  case  was  always  some- 


18  NISI  PRIUS 

where  in  "  I4th  Bush."  Many  times,  when  his 
citation  had  been  challenged  by  doubting  opposing 
counsel,  Judge  Thompson  would  hurry  from  the 
court-house  post  haste  to  his  office,  announcing  that 
he  would  bring  back  "  I4th  Bush  "  containing  the 
case  referred  to.  He  never  returned.  The  next 
morning  he  explained  that  he  "  had  lost  his  mem 
oranda." 

Tobias  Mathews,  likewise  a  member  of  this  bar, 
was  possibly  the  youngest  lawyer  there  at  this  time. 
He  had  had  his  license  to  misrepresent  an  unsus 
pecting  clientage  for  about  four  years,  having  ob 
tained  a  smattering  of  law  at  some  modern  make 
shift  law  school,  where  one  year  of  careless  and 
untrained  study  prepared  the  ambitious  for  the 
fray.  Mathews  brought  all  sorts  and  conditions 
of  lawsuits.  He  plunged  in,  heels  over  head,  and 
rarely  ever  wakened  until  he  had  passed  through 
the  slaughter-house  and  fallen  head  first  into  the 
open  grave  —  and  then  frequently  he  did  not  know 
what  had  happened.  Mathews  sued  everything 
and  everybody,  and  was  the  busiest  and  most  active 
of  all  the  lawyers  at  the  bar.  He  talked  inces 
santly,  blinking  the  while  small  black  eyes  that 
shone  from  under  a  narrow  brow;  but  about  him 
was  the  saving  grace  of  constant  good  humor,  a 
trait  in  the  profession  that  covers  a  multitude  of 
sins.  When  he  made  an  utterly  hopeless  motion 
or  suggestion  in  court,  and  the  bar  could  not  re 
strain  its  laughter,  nor  the  Court  his  amused  smile, 
Mathews  smiled  with  them  and  sat  down,  nothing 
daunted. 


NISI  PRIUS  19 

Ben  Haggard,  the  Commonwealth's  attorney, 
while  he  resided  in  another  county  in  the  district, 
was  a  constant  and  regular  attendant  *upon  the 
court,  and  therefore  ex-officio  a  member  of  the 
Mecklenberg  County  bar.  Haggard  was  a  man  of 
striking  and  handsome  personality,  an  able  advo 
cate,  a  clean  officer,  and  popular  for  his  strong  and 
vigorous  enforcement  of  the  law  and  his  sense  of 
justice  manifest  on  all  occasions.  He  usually 
came  with  the  presiding  judge  at  the  opening  of 
the  term,  completed  the  criminal  docket,  and  re 
turned  to  his  home  county. 

Judge  Thomas  Lowden,  the  judge  of  the  Sev 
enth  Judicial  District,  who  presided  over  the  des 
tinies  of  the  Mecklenberg  Circuit  Court,  was  an 
ideal  trial  judge.  He  was  of  average  stature,  clean 
shaven,  attractive  in  personal  appearance,  and 
looked  the  jurist  from  head  to  foot.  To  Judge 
Lowden  was  given  a  finely  developed  sense  of 
what  lawyers  call  equity.  In  no  case  was  he  ad 
vocate,  but  in  every  case  he  was  judge.  He  had 
a  splendid  education  and  a  splendid  legal  mind; 
was  thoroughly  familiar  with  all  rules  of  practice, 
and  doubtless  knew  more  of  the  science  of  the  pro 
fession  than  any  lawyer  in  the  district.  Notwith 
standing  his  learning  and  profound  ability  as  a 
judge,  he  was  a  sociable  and  most  excellent  com 
panion,  and  was  possessed  of  a  rare  and  finely  cul 
tivated  sense  of  humor.  In  a  judge  this  is  an 
oasis  in  the  desert.  It  prevents  him  from  develop 
ing  into  dry  parchment  and  preserves  his  soul  and 
heart. 


20  NISI  PRIUS 

The  jailer  was  one  Sam  Henry,  a  cousin  of 
Captain  Henry.  Sam  had  held  the  post  for  long 
years.  No  man  in  the  county  could  beat  him  in 
the  elections.  He  could  kiss  more  babies  and 
shake  more  hands  than  any  four  men  in  the  county. 
In  addition  to  this,  there  was  added  an  unanswer 
able  qualification  for  public  office,  to-wit,  he  was 
crippled. 

Fent  Bascom,  the  sheriff  of  the  county,  was  a 
long,  blank-looking  individual,  who  won  his  office 
on  the  ground  of  his  "  fine  nerve."  It  was  said  of 
Fent  that  he  would  fight  a  tree  full  of  wildcats 
with  his  right  hand  tied  behind  him.  In  a  repub 
lic  or  democracy  the  electorate  cannot  resist  that. 
It  was  so  in  Greece,  even  as  it  is  now. 

Tom  New  was  the  circuit  court  clerk.  Tom  was 
a  wonder.  He  was  perhaps  fifty  years  of  age, 
short  of  stature,  clean  shaven,  and  wore  glasses  — 
and  invariably  looked  over  them.  His  legs  bowed 
in,  so  that  he  must  have  been  knock-kneed.  He 
smoked  a  pipe  constantly.  He  gave  gratuitious  ad 
vice  to  every  litigant  in  his  court,  and  had  he  been 
as  wise  in  reality  as  he  incessantly  posed,  Solomon 
would  have  been  as  naught  in  comparison.  When 
he  read  his  orders  at  the  morning  session  he  would 
look  over  his  silver-rimmed  spectacles  in  the  direc 
tion  of  the  Court,  as  if  to  say,  "  Haven't  you  got 
a  great  clerk  ?  "  When  he  made  what  provincial 
counsel  call  a  "  break,"  that  is,  some  inexcusable 
mistake,  he  was  not  daunted.  The  laughter  of  the 
attorneys,  Court,  and  spectators  had  no  terrors  for 
him.  He  promptly,  with  flexible  veracity,  in- 


NISI  PRIUS  21 

vented  some  excuse,  usually  attaching  all  the  blame 
to  some  lawyer  or  officer  who,  be  it  said,  was  al 
ways  absent.  These  excuses  were  transparent  in 
ventions,  pierced  by  everybody,  but  New  thought 
all  hands  accepted  them,  and  was  content.  Such 
was  his  lack  of  penetration,  so  little  of  it  was 
vouchsafed  to  him,  that  he  imagined  his  observers 
had  none.  He  blundered  and  blustered,  and  doing 
so  was  self-persuaded  that  he  was  the  best  of  clerks. 
When  unexpectedly  called  upon  to  administer  an 
oath  to  witness  or  jury  he  invariably  knocked  over 
a  chair,  two  or  three  order  books,  and  concluded 
the  performance  by  using  the  wrong  oath.  He 
would  swear  the  witness  to  try  the  issue  and  the 
jury  to  tell  the  truth.  He  was  on  both  sides  of 
every  case  tried  in  his  court.  The  plaintiff  appre 
ciated  New's  hope  of  his  success.  The  defendant 
had  the  same  gratitude.  When  occasionally  he 
was  confronted  by  them  both,  instead  of  being 
taken  back  he  only  laughed  and  said  he  really  hoped 
for  each  good  friend's  success.  On  public  days  he 
would  invite  twenty  voters  home  to  dine  with  him, 
proceed  homeward  alone,  via  an  unusual  route,  and 
later  would  upbraid  his  disappointed  guests,  swear 
ing  they  must  have  concealed  themselves,  as  he 
looked  for  them  all  over  town. 

He  was  chosen  clerk  for  the  simple  reason,  really, 
that  he  ran  for  the  office  year  in  and  year  out  un 
til  the  electorate,  exhausted  and  wearied  at  his 
persistency,  elected  him  for  the  purpose  of  getting 
rid  of  him.  Such  was  New,  with  his  legs  curved 
the  wrong  way.  When  you  looked  at  him  you  had 


22  NISI  PRIUS 

a  feeling  of  regret  and  sadness.  Sadness  because 
Charles  Dickens  never  knew  him. 

There  were  other  lawyers  and  other  persons  at 
this  term  of  court,  but  enough  has  been  said  con 
cerning  the  chief  characters  with  whom  this  his 
tory  shall  deal.  The  others  will  be  introduced  to 
the  gentle  reader  as  we  progress.  The  dramatis 
persona  in  chief  have  been  presented. 

The  stage  is  set,  the  actors  costumed  and  ready. 
At  a  tinkle  of  the  bell  the  curtain  shall  rise.  It  is 
to  be  hoped  that  pit  and  dome  can  see  and  hear. 
The  thing  is  presented  to  you,  O  critical  reader, 
just  as  it  transpired.  Whether  the  lawyer  was 
profoundly  learned  or  profoundly  ignorant,  your 
own  learning  must  decide.  The  chronicle  will  not 
so  specify. 


CHAPTER  II 

IT  was  just  twelve  o'clock  when  Judge  Lowden 
alighted  from  the  'bus  or  carry-all  in  front  of  the 
Hanna  House.  Several  visiting  lawyers,  members 
of  the  grand  jury  for  that  term,  and  a  handful  of 
traveling  salesmen  likewise  tumbled  out  of  the 
ancient  vehicle  and  made  for  the  hotel  register. 
The  hotel  proprietor,  Mr.  James  Hanna,  addressed 
by  everybody  simply  as  "  Jim,"  and  referred  to  by 
everybody  as  "  Old  Jim,"  was  at  the  door  of  his 
well-known  hostelry,  wearing  his  usual  smile,  which 
peeped  from  under  a  rather  bristly,  sandy  mus 
tache. 

"Hello,  Judge!  How's  the  Court  this  time?" 
At  the  same  time  extending  his  long  arm,  shaking 
Judge  Lowden  warmly  by  the  hand. 

"  Middlin',  Jim,  thank  you.  How's  the  wife 
and  youngsters  ?  " 

"  Well  and  hungry  as  usual.  Judge,  twenty- 
eight  will  be  vacant  by  supper.  There's  a  travel 
ing  man  in  there  now,  but  he  gets  out  this  even 
ing.  You  can  just  leave  your  suit-case  in  Sarah's 
room  this  evening." 

Here  a  white-eyed,  pearly-toothed  darkey  ap 
peared  at  the  rear  door  of  the  office  and  proceeded 
loudly  to  ring  a  large  bell,  announcing  the  noon 
day  meal. 

"  Gentlemen,  the  feast  is  spread  in  the  banquet 
23 


24  NISI  PRIUS 

hall.  Those  who  hunger  and  thirst  may  proceed 
to  that  room." 

This  was  Old  Jim's  regular  remark  each  day  at 
dinner.  He  had  a  solitary  waiter  —  a  black,  real 
black,  darkey  who  went  by  the  name  of  Fox.  Fox 
had  no  mind  at  all.  He  did  not  need  it  in  his 
vocation.  His  intellectual  machinery  operated 
on  a  limited  scale  only  and  consisted  in  "  How 
will  you  have  your  eggs?  Coffee,  milk,  or  wa 
ter?"  That  was  the  extent  of  his  conversational 
powers.  When  a  smart  traveling  salesman  curtly 
replied,  "  Straight  up,  and  coffee,"  Fox  invariably 
brought  them  boiled,  with  a  glass  of  milk.  But, 
with  all  these  shortcomings,  Fox  was  possessed  of 
one  divine  gift,  a  gift  not  dissimilar  to  one  pos 
sessed  by  Judge  Cole  in  his  arguments  to  juries  — 
staying  qualities.  That  blessed  accomplishment 
covered  more  than  a  multitude  of  sins  surely  with 
Fox,  possibly  with  Judge  Cole. 

In  passing  from  the  hotel  office  to  the  dining- 
room,  one  had  to  enter  through  a  narrow  hallway 
or  passageway,  where  was  found  a  wash  basin, 
a  bucket  of  water,  and  a  towel  which  hung 
from  a  rack  on  the  wall.  This  towel  was  of  doubt 
ful  age  and  unquestionably  was  a  veteran  in  the 
business.  A  small  vacant  room  opened  into  this 
little  passageway. 

As  Judge  Lowden  passed  on  his  way  to  the  din 
ing-room  Old  Jim,  with  a  twinkle  in  his  eye,  which 
had  a  well-fixed  significance  to  the  Court,  looked 
out  from  the  vacant  room  and  beckoned  to  the 
Judge,  with  the  remark  that  he  had  a  little  "  fluid," 


NISI  PRIUS  25 

and  inquired  if  the  Court  would  care  to  have  a 
"  nip "  before  dining.  The  Judge  replied,  with 
thanks,  in  the  negative.  If  one  could  have  wit 
nessed  what  followed  he  would  have  observed  Old 
Jim  happily  drawing  a  cork  and  muttering  to  him 
self  the  words :  "  I  can't  figure  out  how  the  Court 
can  decline  a  drink." 

Now,  be  it  said  here  at  this  stage  that  Old  Jim 
was  beyond  the  meridian  of  life,  and  his  friends 
and  enemies  agreed  that  in  his  day  he  had  con 
sumed  enough  "  licker  "  to  float  a  battle-ship.  He 
was  of  the  iron  type,  and  had  a  constitution  like 
an  ox.  When  he  had  "  too  much  aboard  "  he  had 
the  good  sense  to  disappear  until  fully  recuperated. 
When  he  had  the  due  and  proper  quantity,  which 
philosophers  have  never  yet  been  able  exactly  to 
measure,  he  was  a  genius  of  rare  type,  overflowing 
with  anecdotes,  told  with  wonderful  charm  and 
accomplishment.  Sometimes  he  swore  right  nobly, 
and  though  he  admitted  to  the  charge  of  having  his 
religion  in  his  wife's  name,  yet  he  was  in  common 
parlance  "  as  straight  as  a  string  "  and  was  never 
known  to  have  done  a  questionable  act  or  injured 
friend  or  foe. 

Judge  Lowden  having  completed  his  repast,  now 
sought  his  usual  seat  under  a  bending  water  maple 
that  overhung  the  pavement  in  front  of  the  hotel 
and,  lighting  a  cigar,  was  engaged  in  passing  away 
the  few  remaining  moments  before  the  time  for 
the  opening  of  court.  Hanna,  drawing  a  chair 
near  the  Judge,  began,  as  was  his  wont,  to  recite 
different  bits  of  news  and  events  since  the  last 


26  NISI  PRIUS 

term,  directly  leading  up  to  a  present  smallpox 
alarm,  which  had  threatened  to  require  the  post 
ponement  of  the  entire  term  of  court.  The  Judge, 
some  week  or  ten  days  previous  to  the  convening 
of  the  term,  had  been  informed  fully  as  to  the  con 
ditions,  and  after  careful  inquiry  and  mature  delib 
eration  had  concluded  that  the  scare  was  much  ex 
aggerated,  and  had  determined  to  hold  the  term  as 
usual.  He  reached  the  conclusion  that  the  County 
Board  of  Health  was  unduly  exercised,  and  that  it 
had  overestimated  and  magnified  the  whole  situa 
tion,  due,  possibly  to  an  exaggerated  idea  of  its 
own  importance.  In  fine  and  in  short,  nobody  save 
the  members  of  that  wise  body  had  taken  the  mat 
ter  seriously,  an  attitude  the  health  board  could 
not  at  all  appreciate  or  comprehend. 

This  smallpox  scare  was  the  topic  uppermost  in 
Jim's  mind,  for  the  very  excellent  and  all-sufficient 
reason  that  had  the  opinions  of  the  board  been 
taken  seriously,  their  counsel  heeded,  and  proper 
quarantine  regulations  established,  travel  in  and 
out  of  Greenwood  would  have  been  light  and  the 
earnings  of  Old  Jim's  hotel  would  have  been  cor 
respondingly  reduced.  This  potent  fact,  coupled 
with  Jim's  ancient  and  natural  political  differences 
with  the  chief  members  of  the  board,  made  it  an 
agreeable  and  easy  task  for  him  to  join  in  the  gen 
eral  ridicule  and  to  enjoy  the  discomfiture  of  the 
earnest  advocates  of  universal  vaccination  and 
strict  quarantine.  Thus  he  opened  the  subject: 

"  Judge,  we  have  been  havin'  hell  with  the  Board 
of  Health  since  you  were  here  last  February.  Old 


NISI  PRIUS  27 

Doctor  Bowmer  has  been  tearing  his  shirt.  He 
says  the  people  don't  treat  the  board  with  due  re 
spect.  You  know  the  old  Doc, —  well,  he's  dignity 
itself,  and  he  can't  figure  it  out  why  the  people 
don't  obey  his  sweeping  order  about  vaccination. 
It's  a  great  story.  But  there's  the  court-house  bell 
and  I'll  have  to  tell  you  about  it  later." 

Responsive  to  the  ringing  bell,  Judge  Lowden 
arose  and  made  his  way  to  the  court-house.  The 
members  of  the  bar  were  seated  about  in  a  semi 
circle,  Judge  Cole,  glasses  adjusted,  scanning  his 
"  private  docket  " ;  Captain  Henry,  freshly  shaven, 
with  papers  protruding  from  every  visible  pocket; 
Bill  Scott,  looking  as  if  he  had  not  had  a  drink  for 
thirty  days,  abusing  the  clerk  for  losing  a  record 
in  an  "  important  case  "  in  which  he  was  counsel. 
Colonel  Stevens  was  not  present ;  but  with  that  one 
exception  the  entire  membership  of  the  bar  occu 
pied  their  places  when  the  Judge  entered. 

"  Mr.  Clerk,  call  the  grand  jury,"  came  from 
the  bench,  and  the  June  term  of  the  Mecklenberg 
Circuit  Court  was  under  way. 

On  the  voir  dire  the  usual  routine  of  questions 
and  answers  were  put,  the  Court  assuming  the  mo 
notonous  task  of  qualifying  the  members  of  the 
grand  jury.  The  archaic  and  now  ridiculous  ques 
tions  relating  to  keepers  of  taverns,  the  one  relat 
ing  to  "  horse,  jack,  or  bull  "  were  put  and  an 
swered.  In  replying  to  the  interrogatory  as  to 
whether  any  member  of  the  panel  was  a  civil  offi 
cer,  one  dignified,  magnificent-looking  old  farmer, 
one  of  the  most  prominent  men  in  the  county,  said 


28  NISI  PRIUS 

slowly,  "  Jedge,  I'm  gardeen  for  a  minor  heir." 
He  was  chosen  and  was  the  balance  wheel  of  the 
jury  —  such  was  his  native  sense.  Monarchies, 
despotisms,  plutocracies,  take  note  of  this  and  trust 
your  plain  citizenry. 

Accepting  some  excuses,  denying  others,  order 
ing  the  summoning  of  several  by-standers  to  com 
plete  the  panel,  the  twelve  "  inquisitive  gentlemen  " 
were  soon  in  the  jury  box  and  were  listening,  with 
more  or  less  interest  and  appreciation,  to  a  clear 
and  excellent  charge,  in  which  their  duties  were 
defined  and  in  which  suggestions  of  the  method  of 
their  work  were  made.  Many  penal  statutes  were 
directly  pointed  out  to  them ;  others  referred  to  gen 
erally.  They  were  told  impressively  to  know  no 
friends  and  remember  no  enemies;  that  the  salva 
tion  and  endurance  of  the  Commonwealth  depended 
upon  their  duty  being  done  fearlessly  and  impar 
tially;  that  prosecutions  must  originate  with  their 
action  and  that  theirs  was  a  grave  and  serious  re 
sponsibility. 

Near  the  conclusion  of  the  charge  it  was  ob 
served  that  Doctor  Bowmer  was  gradually  nearing 
the  bench.  He  was  advancing  by  small  creeps. 
He  had  written  to  the  Judge  before  his  coming  to 
Greenwood,  telling  him  of  the  flagrant  violation 
of  the  laws  relating  to  vaccination,  naming  many 
specific  cases,  with  the  request  that  the  grand  jury 
be  charged  especially  as  to  these  gross  infractions 
of  the  law.  He  had  sat  there  and  heard  the  Court's 
charge,  and  thus  far  no  mention  had  been  made  of 
this  most  serious  subject.  He  was  visibly  annoyed. 


NISI  PRIUS  29 

As  the  Judge  grew  nearer  and  nearer  to  the  end  of 
his  admonition,  Dr.  Bowmer's  anxiety  increased. 
He  grew  nearer  and  nearer  to  the  Judge.  He  was 
now  quietly  and  noiselessly  approaching  the  Bench. 
When  the  Judge  reached  a  pause  in  his  lecture,  Dr. 
Bowmer  arose  and  whispered  to  him,  "  Tell  'em 
about  the  Board  of  Health."  The  Judge,  very 
quietly  and  with  something  of  a  chill  in  his  voice, 
said  to  the  anxious  doctor :  "  Doctor,  take  a  seat 
outside  the  bar  rail,"  and  without  any  mention  of 
the  Board  of  Health  or  smallpox  or  vaccination 
shortly  brought  his  charge  to  an  end  with  "  I  will 
appoint  Mr.  Hardy  foreman  of  this  grand  jury. 
Mr.  Sheriff,  conduct  them  to  their  jury  room." 
Whereupon  the  twelve  members  of  the  inquisitorial 
body  slowly  filed  out  of  the  court-room,  not  before, 
however,  Mr.  Hardy  approached  the  court  with 
the  excuse  that  an  older  or  more  experienced  man 
should  be  foreman,  to  which  the  judge  only  smiled 
and  said  very  kindly :  "  We  will  afford  you  an  op 
portunity  to  acquire  some  experience." 

The  common  law  docket  was  then  passed  to  the 
Judge  and  he  began  the  calling  of  cases,  suggest 
ing  to  counsel  present  that  they  indicate  what  cases 
would  likely  be  tried  and  those  that  would  not  be 
tried,  so  that  he  could  set  the  docket  for  jury  trials. 
As  was  usual  on  the  first  day,  every  case  was  con 
sidered  as  certain  to  be  tried.  The  first  case 
called  brought  Judge  Cole  to  his  feet,  moving  the 
Court  that  it  be  dismissed  without  prejudice.  Now 
Captain  Henry  was  opposing  counsel,  and  he  ob 
jected,  for  the  defendant,  to  the  case  being  dis- 


30  NISI  PRIUS 

missed.  A  strange  smile  lighted  up  the  face  of  the 
Judge.  He  queried  Captain  Henry  and  asked  him 
how  or  by  what  rule  of  practice  he  could  prevent 
a  plaintiff  from  dismissing  his  own  suit,  to  which 
the  Captain  replied: 

"  If  the  Court  please,  this  suit  has  been  on  this 
docket  for  a  year.  We  are  ready  for  trial.  They 
are  running.  We've  driven  them  to  cover.  Now, 
after  the  pleadings  are  all  made  up  and  the  case 
prepared  for  trial,  it's  a  great  injustice  to  the  de 
fendant  to  simply  throw  the  case  out  of  court. 
Under  the  constitution  we  are  entitled  to  a  trial, 
and  we  now  demand  a  trial.  Ordinarily,  I  believe 
in  extending  all  courtesy  to  opposing  counsel,  but 
in  this  case,  sir,  we  will  neither  give  nor  ask  quar 
ter.  We  want  it  practiced  strictly  by  the  Code  and 
under  the  constitution." 

There  being  no  jury  business  for  that  afternoon, 
the  Judge,  who  sustained  himself  by  the  humor  of 
the  practice,  treated  these  suggestions  as  serious, 
and  called  upon  Judge  Cole  to  know  what  his  views 
were  on  the  subject.  Cole,  quickly  seeing  the  gen 
eral  smile  that  pervaded  the  bar  when  Captain 
Henry  made  his  point,  knew  that  the  Captain  had 
made  a  fool  of  himself,  but  really  did  not  know  in 
just  what  particular.  He  knew  enough,  however, 
to  warrant  him  in  ridiculing  his  worthy  opponent, 
trusting  to  the  accuracy  of  the  general  smile  that 
went  the  rounds  when  the  Captain  resumed  his 
seat.  Let  it  be  here  said  that  Judge  Cole  was  an 
adept  in  the  art  of  catching  on  in  an  instant.  He 
arose  with  a  smile  of  scorn  on  his  lips,  adjusted  his 


NISI  PRIUS  31 

glasses,  looked  over  his  "  private  docket "  and,  ad 
dressing  the  Bench,  said : 

"  May  it  please  the  Court,  for  many  years  I  have 
practiced  at  this  bar.  I  never  heard  of  such  a  sug 
gestion  before  the  beginning  of  the  trial.  No  jury 
has  been  chosen ;  no  witness  has  appeared,  and  now, 
to-day,  the  first  day  of  the  term,  I  come  and  move 
to  dismiss  this  case  without  prejudice.  I  have  that 
right  at  this  time.  I  will  admit  that  had  I  waited 
until  to-morrow  or  the  next  day  or  until  the  case 
had  been  set  down  for  trial  there  would  be  a  grave 
question  presented  whether  we  had  this  right — >a 
very  serious  question  would  then  arise;  but  at  this 
stage  Captain  Henry's  point  is  amusing." 

The  Judge  looked  at  Captain  Henry,  who  was 
turning  very  rapidly  the  leaves  of  the  Code. 
The  Captain,  taking  the  look  to  be  an  invitation  to 
proceed  with  the  discussion,  arose  and  with  a 
freezing  accent  in  his  voice  and  more  or  less  of 
contempt  in  his  expression,  said: 

"  I  desire  to  remind  Judge  Cole  of  the  fact  that 
this  is  not  a  magistrate's  court  that  we  are  in.  I 
concede  that  before  a  justice  of  the  peace  the  gen 
tleman's  point  might  receive  serious  consideration. 
I  have  here  the  Constitution  of  the  State,  the  Code 
of  Practice,  and  the  Kentucky  Statutes.  I  have 
examined  all  of  them  " —  his  voice  here  beginning 
to  rise,  indicating  that  a  speech  was  coming  — 
"  and,  sir,  I  am  here  to  say  that  we  are  entitled  to 
a!  trial  of  this  cause.  Will  Mr.  Cole —  I  cannot  say 
Judge  Cole  now  —  will  Mr.  Cole  take  issue  with  the 
Constitution?  It  guarantees  to  every  man  charged 


32  NISI  PRIUS 

with  crime  a  speedy  trial.  Not  a  dismissal,  which 
is  nothing,  but  a  trial,  a  speedy  trial.  The  Bill 
of  Human  Rights  at  the  very  start  of  the  Consti 
tution  says  so;  all  the  books  say  so.  Will  counsel 
—  no,  pardon  me,  will  the  gentleman  deny  that 

authority?     I  make  the  point " 

He  was  here  interrupted  by  Judge  Cole,  who 
arose  and  said :  "  If  the  Court  please,  I  have  this 
case  down  on  my  private  docket.  It  is  the  ca?,e  of 
Sylvester  Dupoyster  v.  Finis  Blacklock,  and  is  num 
ber  2645,  Common  Law.  Nobody  is  charged  with 
crime  in  this  case.  This  is  a  civil  suit  for  money 
we  claim  to  be  due  us.  Counsel  talks  as  if  it  were 
an  indictment  and  I  was  the  Commonwealth's  At 
torney.  I  concede  that  if  this  were  an  indictment 
and  I  were  the  State's  Attorney,  Captain  Henry's 
remarks  would  be  well  founded,  for  the  Consti 
tution  and  Code  and  Statutes  all  give  to  a  man 
charged  with  crime  the  right  to  a  speedy  trial.  In 
such  a  case  the  point  of  Captain  Henry  would,  of 
course,  prevail,  but,"  turning  fiercely  to  Captain 
Henry,  "  sir,  show  me  any  constitution  or  code  or 
statutes  or  decision  anywhere  demanding  any 
speedy  trial  in  a  civil  case.  On  the  contrary,  such 
cases  are  always  delayed.  Why,  sir,  I  know  of 
cases  on  this  docket  that  have  been  there  for  years 
and  years,  and  no  complaint  has  ever  been  made. 
I  guess  I've  got  the  inherent  right  to  dismiss  my 
own  case,  and  I  insist  on  my  motion  to  dismiss. 
Your  Honor  can't  have  any  doubt  about  that 
proposition.  If  so,  I'm  willing  to  leave  it  to  the 
crowd  here.  Every  lawyer  knows  that." 


NISI  PRIUS  33 

At  this  juncture  Captain  Henry  looked  the  part 
of  a  defeated  general.  He  was  knitting  his  brows 
and  appeared  as  wise  as  possible,  but  he  knew  not 
what  to  suggest.  One  of  the  younger  members 
of  the  bar  was  seen  to  pass  the  Captain  a  note, 
which  he  hurriedly  and  slyly  read,  doing  his  ut 
most  to  conceal  the  fact  from  onlookers.  As  he 
read,  the  anxious  expression  gradually  faded  from 
his  face;  a  smile  lit  up  his  countenance  and  he 
looked  the  very  monarch  of  all  he  surveyed.  He 
arose,  smiled  with  infinite  pity  upon  his  antagonist, 
and  in  a  spirit  of  crushing  triumph  said  to  the 
Court : 

"  It  seems  not  to  have  dawned  upon  the  Judge 
—  pardon  me,  I  should  say  Mr.  Cole  —  that  I  have 
a  counterclaim  in  my  answer  in  this  case.  The 
plaintiff  cannot  have  the  whole  case  dismissed  when 
his  adversary  has  a  counterclaim  against  him.  Did 
I  not,  Mr.  Cole,  just  a  few  moments  ago  remind 
you  of  the  very  manifest  fact  that  this  is  not  the 
court  of  a  justice  of  the  peace,  but  the  forum  of 
the  circuit  court?  If  not,  permit  me  to  now  call 
your  attention  to  that  fact.  Do  you  follow  me?" 

Edmund  Burke  himself  could  not  have  shown 
the  withering  satire  and  sarcasm  that  Captain 
Henry  manifested  after  the  receipt  of  the  life-sav 
ing  communication  from  the  friendly  young  law 
yer,  that  saved  the  day  for  him.  Judge  Cole,  evi 
dently  in  despair,  was  on  the  verge  of  surrendering 
at  once,  as  he  did  not  know  how  to  meet  this  last 
sudden  and  apparently  unanswerable  thrust.  The 
Court,  looking  in  Judge  Cole's  direction,  discov- 


34  NISI  PRIUS 

ered  him  sitting  very  low  in  his  chair,  apparently 
without  any  reply  ready  for  Captain  Henry.  He 
was  slowly  turning  the  leaves  of  his  "  private 
docket,"  visibly  affected  by  Henry's  last  blow,  but 
trying  to  conceal  his  anxiety. 

"  Well,  Judge,"  said  the  Court,  "  what  have  you 
to  say  to  that  last  proposition  of  the  Captain's?" 

"  There's  nothing  in  the  point,  if  your  Honor 
please.  I  don't  care  to  draw  out  the  discussion 
longer.  I  say  there  is  nothing  in  the  point.  I 
simply  desire  that  my  motion  be  submitted." 

"  But,"  said  the  Court,  "  what  do  you  think  of 
the  point  as  to  the  counterclaim?  I  want  to  hear 
your  views  on  that  question." 

"  May  it  please  this  honorable  court "  At 

this  juncture  Judge  Cole  felt  some  one  pulling  at 
his  coat-tail,  and,  looking  around,  observed  a  young 
lawyer,  a  visiting  attorney  from  Madisonville,  try 
ing  to  clandestinely  hand  him  a  note.  He  seized 
the  communication  with  the  frenzy  of  a  dying  man 
and  placed  it  between  the  leaves  of  his  "  private 
docket "  and  did  it  so  quickly  that  only  the  sharp 
eyes  of  the  Court  and  a  few  of  the  spectators  ob 
served  it.  He  continued: 

"  Pardon  me,  Judge,  permit  me  to  examine  my 
private  docket." 

He  looked  long  and  closely  at  his  "  private 
docket "  and  then  resuming  said,  with  even  more 
satire  and  scorn  than  Captain  Henry  had  employed : 

"  The  counterclaim  mentioned  is  not  in  fact  any 
counterclaim  at  all.  My  suit  is  a  suit  on  an  open 
account,  consisting  of  various  items,  making  a  to- 


NISI  PRIUS  35 

tal  amount  due  on  the  account  of  $193.50.  The 
defendant  files  a  thing  here  which  he  marks  an 
swer  and  counterclaim,  and  asks  judgment  over 
and  against  my  client  for  $5.50  alleged  damages 
for  alleged  slander.  Now,  I  submit  that  the  dam 
ages  are  not  in  liquidation,  do  not  grow  or  flow  out 
of  the  matter  sued  on,  and  are  not  a  part  of  the 
transaction  involved  in  the  original  lawsuit. 
And," —  turning  to  Captain  Henry  — "  speaking  of 
magistrate's  courts,  it  seems  you  have  been  hoisted 
up  again  on  your  own  spike.  The  idea  of  pleading 
slander  damages  in  counterclaim  in  a  suit  on  an 
open  account !  Preposterous !  " 

Here  Judge  Cole  resumed  his  seat  in  tri 
umph.  Captain  Henry  was  on  his  feet  in  an  in 
stant. 

"  Judge,  the  Code  says  that  if  the  thing  grew 
out  of  the  thing  in  controversy  it  can  be  pleaded 
in  a  counterclaim.  Now  all  of  this  slander  sprang 
directly  —  not  indirectly,  but  directly  —  from  this 
account.  I  will  overwhelm  them  with  proof  as  to 
what  the  plaintiff,  Dupoyster,  said  about  my  client, 
and  I " 

Here  the  Court  interrupted  with : 

"  Captain  Henry,  please  read  me  that  part  of 
your  answer  relating  to  the  counterclaim." 

"  All  right,  your  Honor,"  replied  the  Captain, 
"  I  was  just  going  to  suggest  that  very  course.  I 
will  proceed." 

The  following  part  of  the  answer  and  counter 
claim  was  then  read  to  the  Court  by  the  expert 
pleader : 


36  NISI  PRIUS 

"  Reiterating  and  renewing  all  his  former 
charges  and  claims  and  allegations,  defendant  now 
comes  and  says  that  he  not  only  does  not  owe  the 
account  sued  on,  but  that  the  plaintiff  knows,  and 
knew  at  the  time  of  the  things  hereinafter  set  out, 
that  he  owed  no  part  of  said  account.  He  alleges 
that  the  plaintiff  sent  him  many  letters  and  duns  to 
pay  said  alleged  account;  that  he  sent  said  letters 
through  the  mails  of  the  United  States,  and  sent 
postal  cards,  dunning  him  and  annoying  him  and 
harassing  him,  not  concealing  the  purpose  of  said 
notes  and  postal  cards,  but  writing  them  thus  openly 
so  that  people  could  see  and  understand  what  the 
said  duns  and  demands  were  about;  that  in  this 
wise  defendant  was  greatly  humiliated  and  dis 
turbed  and  annoyed  and  harassed ;  that  the  plaintiff 
talked  about  this  defendant  in  an  unbecoming  and 
slanderous  manner,  telling  everybody  who  came 
into  his  store  that  the  defendant  would  never  pay 
an  honest  debt ;  that  he  was  a  dead-beat,  a  bum,  and 
such  other  rude  and  highly  uncomplimentary 

things;  that  he  said  to  Sam  Jenkins  on  the 

day  of these   words  or  in  substance  these 

words :  '  He  '  (referring  to  defendant)  '  aint  worth 
three  hurrahs  in  hell '  (referring  to  defendant's 
financial  standing  and  not  his  particular  personal 
ity)  *  and  if  the  store  business  in  this  country  de 
pended  on  such  cattle  as  Finis  Blacklock,  the  deal 
ers  might  as  well  shut  up  shop  right  now.'  De 
fendant  says  that  by  virtue  of  said  wrongful  and 
viperous  charges  and  slanders  he,  the  defendant, 
yvho  theretofore  stood  high  in  the  neighborhood, 


NISI  PRIUS  37 

was  reduced  to  a  bad  standing  and  reputation; 
that  all  of  his  friends  and  neighbors  believed  said 
charges  and  claims,  though  they  all  knew  the  de 
fendant's  previous  good  reputation  and  really  knew 
that  the  plaintiff  was  a  reckless  man  with  the  truth, 
liable  to  say  anything  if  a  dollar  was  at  stake.  He 
says  his  credit  was  shocked  and  broken  and  im 
paired,  on  account  of  said  vile  slanders  and  false 
claims  and  charges  as  aforesaid;  that  previous  to 
the  utterance  of  said  charges  defendant  was  able 
to  get  credit  anywhere  to  a  reasonable  extent,  but 
that  since  he  has  refused  to  pay  this  debt  to  the 
plaintiff  he  is  unable  to  obtain  any  credit  anywhere, 
though  the  other  store  keepers  and  merchants  all 
know  that  the  claims  and  charges  of  the  plaintiff 
are  all  false,  on  account  of  the  previous  good  repu 
tation  and  high  standing  of  this  defendant;  but 
they,  said  other  merchants  out  of  care  and  pru 
dence  do  not  of  course  like  to  run  any  extra  risks, 
all  of  which  has  been  the  direct  and  approximate 
result  of  plaintiff's  conduct,  which  has  been  con 
tinuous,  without  any  intervening  agency;  that  said 
damages  resulting,  as  aforesaid,  are  not  remote 
or  contingent,  but  are  plain  and  ambiguous ;  that 
no  part  of  said  damages  has  ever  been  paid,  though 
overdue  and  many  times  demanded;  that  the  de 
fendant  has  no  inadequate  remedy  at  law  or  in 
equity,  save  by  means  of  this  proceeding,  and,  as 
defendant  verily  believes,  he  will  receive  great  and 
irreparable  injury  unless  the  court  grants  him  re 
dress  here  and  now  in  this  action;  that  no  court 
or  clerk  or  judge  or  sheriff  or  jailer  or  constable 


38  NISI  PRIUS 

has  ever  denied  him  this  relief,  and  that  same  has 
never  been  applied  for  and  refused  heretofore.  He 
says  if  required  to  maintain  a  separate  action  for 
damages,  he  will  be  endangered  by  delay  in  pro 
curing  a  judgment,  having  an  execution  issued  and 
returned  '  no  property  found,'  because  the  plain 
tiff  has  threatened  to  transfer  his  property, 
said  store,  to  his  wife  (which,  however,  would 
be  a  fraudulent  conveyance,  but  we  could 
not  attack  it  until  six  months  passed,  which 
would  be  too  late) ;  that  there  are  no  other 
liens  on  said  property,  so  far  as  the  defendant  has 
heard  or  knows  save  this  one;  and  that  the  plain 
tiff's  property  cannot  be  divided  without  material 
injury  to  this  defendant.  Said  account  is  for 
$193.50  that  plaintiff  claims  the  defendant  owes 
him,  and  defendant  says  that  for  said  viperous 
slander  and  abuse,  his  claim  against  the  plaintiff  is 
for  $199.00,  so  that,  premises  considered,  even  if 
the  court  or  jury  (but  this  is  not  a  jury  case,  how 
ever)  should  hold  that  defendant  is  bound  for  said 
account  of  $193.50,  then  plaintiff  is  bound  for  this 
slander  bill  of  $199.00,  so  that  the  plaintiff  will 
owe  defendant,  on  a  settlement,  the  sum  of  $5.50 
and  all  his  costs,  including  a  reasonable  attorney's 
fee  to  Thomas  Henry,  Esq.,  his  attorney  and  coun 
selor  at  law  (who  prepared  this  case  for  him  at 
some  pains).  And  in  view  of  all  the  premises  and 
the  cross  accounts  between  the  parties  litigant  in 
this  action,  defendant  asks  that  this  cause  be  re 
ferred  to  the  Master  Commissioner,  who  shall  be 
charged  and  directed  by  the  court  to  audit  and 


NISI  PRIUS  39 

marshal  both  of  said  claims  and  present  them,  prop 
erly  proved,  to  the  court  for  final  determination 
and  adjudication;  and  this  answer  setting  up  ac 
counts  and  questions  too  complicated  for  a  jury  to 
try  with  sense  and  accuracy,  the  defendant  moves 
that  this  case  be  taken  from  the  jury  docket  and 
be  known  as  an  equity  case,  to  be  decided  by  the 
court,  on  this  answer  and  the  report  of  said 
Master  Commissioner  (after  he  makes  said  re 
port). 

"  And  now  having  fully  pleaded  the  things  and 
matters  above  enumerated,  he  prays  as  herein  in 
dicated  and  he  also  prays  for  such  other  general 
and  proper  relief  as  he  may  appear  entitled  to  (in 
cluding  costs  and  the  fee  for  his  attorney,  Thomas 
Henry,  Esq.,  his  counsel  herein,  who  prepared  this 
case  at  some  pains)  and  further  deponent  sayeth 
not.  FINIS  BLACKLOCK, 

"  By  Thos.   Henry,  Atty." 

"  Now,  your  Honor,"  continued  the  Captain, 
"  you  have  the  whole  thing  laid  bare.  You  see 
the  wrong  and  the  damages  and  the  disgrace  and 
reduction  of  earning  power,  shaken  credit,  lost 
standing,  and  all  these  infinite  things  that  go  to 
destroy  a  man's  previous  good  standing.  We  say 
it  grows  out  of  this  account,  and  we  demand  re 
dress.  All  we  want  is  a  chance  at  'em.  Will 
jurisprudence  deny  us  that?  Must  justice  hang 
her  head  in  helpless  oblivion  and  melancholy?  Is 
this  temple  of  justice  a  mockery?  I  know  this 
Court  well  enough  to  know  his  answer." 


40  NISI  PRIUS 

The  Captain  dropped  in  his  seat  with  victory  in 
his  eyes  and  scorn  upon  his  lips.  But  Judge  Cole 
had  been  told  by  one  he  knew  to  be  a  most  excel 
lent  lawyer,  in  that  life-saving  note,  that  the  mat 
ter  set  out  in  that  answer  could  not  be  pleaded  in 
a  counterclaim,  and  he  was  sure  of  his  ground. 
He  arose  again: 

"  Judge,"  he  said,  "  I  dislike  to  prolong  a  fool 
ish  argument,  but  we  lawyers  never  know  what 
the  Court  might  do  unless  we  give  the  Court  full 
and  free  benefit  of  our  views.  Out  of  precaution. 
I  shall  reply  to  the  argument  of  my  friend  on  the 
other  side  of  this  case  —  this  important  case.  I 
shall  begin  by  saying " 

Here  the  Court  interrupted,  saying: 

"  Judge,  I  do  not  think  it  necessary  to  further 
press  your  point.  I  do  not  see  how  that  matter 
can  well  be  matter  for  a  counterclaim.  I  am  clear 
that  it  does  not  come  up  to  the  requirements  of  the 
Code.  It  is  foreign  to,  instead  of  growing  out  of, 
the  transaction  set  up  in  the  petition.  Unless  Cap 
tain  Henry  can  show  me  some  authority  or  suggest 
some  more  plausible  reason,  I  will  have  to  sustain 
you  on  that  proposition." 

Captain  Henry  was  again  in  the  depths.  He 
said  afterwards  that  he  felt  himself  slipping.  At 
this  particular  and  perilous  moment,  however,  he 
again  felt  a  friendly  nudge  at  his  side,  and  at  once, 
as  if  from  an  inspiration,  held  his  hand  behind  his 
back,  hoping  to  conceal  his  movements  from  the 
Court  Someone  quietly  and  deftly  slipped  an 
other  note  into  the  palm  of  his  hand,  which,  placing 


NISI  PRIUS  41 

between  the  leaves  of  the  open  Code,  he  quickly 
read.  A  smile  stole  gradually  over  his  face;  there 
was  cheer  in  his  soul.  Quickly  and  secretly  crum 
bling  the  note  between  his  fingers,  he  arose  and 
with  the  utmost  confidence  proceeded  to  furnish 
the  Court  the  "  more  plausible  reason  "  called  for 
by  his  Honor,  speaking  thus : 

"  I  have  thought  about  what  your  Honor  has 
said.  I  went  deeply  into  that  feature  of  the  case 
when  I  prepared  that  pleading.  But,  may  it  please 
the  Court,  there  is  no  demurrer  to  this  counter 
claim;  there  is  no  motion  to  strike," — his  voice 
rapidly  rising  — "  there  is  no  motion  to  elect.  Sir, 
there  is  a  reply;  a  reply  on  the  merits;  a  pleading 
on  the  merits,  denying  all  of  the  allegations  of  my 
counterclaim.  They  have  waived  the  thing;  they 
have  waived  everything;  they  have  voluntarily 
submitted  to  the  Court's  jurisdiction,  and  now, 
after  waiver,  after  an  express  and  deliberate 
waiver,  can  they  crawfish  and  back  out  and  hedge? 
I  submit  that  if  they  had  raised  the  question  at 
the  proper  time  they  might  have  been  right;  but 
at  this  stage,  never!  They  reply,  they  plead;  their 
reply  contains  all  sorts  of  things,  does  it  not,  Mister 
Cole?  Permit  me  to  ask  you,  is  it  just  a  denial 
or  does  it  contain  any  affirmative  matter?" 

By  Judge  Cole :  "  It's  a  mere  travesty,  a  com 
plete  travesty;  no  affirmative  matter  whatever." 

The  Court  was  again  seeking  refuge  behind  the 
flowers. 

"  I  thought  it  had,"  continued  Captain  Henry, 
"  a  second  paragraph  of  new  matter.  But  that 


42  NISI  PRIUS 

cuts  no  figure.  You  answered  on  the  merits;  you 
replied;  you  forever  waived  your  right  to  now 
raise  this  question.  The  Court  knows  that  the  law 
frowns  on  such  dilatory  tactics." 

"  May  it  please  the  Court,"  renewed  Judge  Cole, 
"  I  did  not  file  a  demurrer  because  I  thought  this 
the  best  way  to  raise  the  question.  I  thought  about 
the  demurrer  and  the  motion  to  strike  and  the  mo 
tion  to  elect.  Mr.  Henry  don't  catch  me  on  any 
of  those  elementary  things,  but  I  was  due  to  plead 
in  March.  No  court  was  in  session;  the  clerk  did 
not  feel,  so  he  said  to  me,  like  passing  on  a  de 
murrer  or  an  important  motion.  I  had  to  do  some 
thing  in  March,  and  Captain  Henry  was  planning 
to  take  judgment  by  default  if  I  had  not  pleaded 
and  denied  his  counterclaim  from  stem  to  stern. 
You  can  smile,  Mr.  Henry,  all  you  desire,  sir,  but 
I  guess  I  will  practice  this  side  of  this  lawsuit  as 
I  myself  may  prefer.  I  admit  that  I  have  waived 
the  demurrer  and  have  waived  the  motion  to  strike, 
but  I  do  not  concede  that  I  have  waived  the  mo 
tion  to  elect.  My  recollection  of  the  Code  is  that 
a  motion  to  elect  is  never  waived.  I  did  not  in 
tend  to  raise  any  question  of  jurisdiction  in  your 
Honor's  court.  I  consider  that  a  reflection  on  any 
court,  to  try  to  take  a  case  out  of  his  court." 

"  Let  me  see  the  reply,  Mr.  Clerk,"  said  the 
Court,  whereupon  the  clerk  bustled  and  hurried 
about  in  his  small  clerk's  compartment,  knocked  a 
large  order  book  off  the  railing,  dropped  his 
glasses,  and  finally  handed  the  Judge  a  bundle  of 
papers  in  the  case  in  question.  The  Judge  began 


NISI  PRIUS  43 

leisurely  to  scan  the  record  before  him,  while  Cap 
tain  Henry  and  Judge  Cole  eyed  each  other  tri 
umphantly,  each  feeling  great  sympathy  for  the 
other,  and  each  feeling  his  victory  quite  visibly. 
They  were  awaiting  their  fate,  as  it  was  apparent 
the  Court  had  heard  all  he  desired  and  had  fa 
miliarized  himself  with  the  questions  presented  and 
was  ready  to  announce  his  decision.  It  was  thus 
he  ruled  in  the  case  of  Dupoyster  v.  Blacklock: 

"  Gentlemen,  I  have  heard  you  with  interest.  I 
do  not  think  such  matter  as  is  contained  in  the 
second  paragraph  of  the  answer  can  be  properly 
set  up  in  a  counterclaim  in  this  sort  of  action.  It 
is  certainly  foreign  to  the  cause  of  action  set  out 
in  the  petition.  As  to  the  question  of  waiver,  that 
presents  a  serious  situation  "  (here  Captain  Henry 
-  expanded  his  chest,  with  a  bow  of  satisfaction  and 
intelligence,  while  Judge  Cole  correspondingly  slid 
down  lower  in  his  seat),  "but  I  see  there  is  as  a 
matter  of  fact  no  reply  in  this  record.  Here  is  a  re 
ply  in  another  case,  that  of  Harwood  v.  Sum 
mers,  on  which  Judge  Cole  is  marked  as  counsel, 
but  there  is  no  reply  here  in  this  case.  I  infer 
that  by  mistake  or  oversight  this  pleading  was  put 
in  these  papers." 

Here  Judge  Cole,  straightening  up,  remarked: 

"  Judge,  pardon  me,  allow  me  to  examine  my  pri 
vate  docket.  Yes,  I  filed  that  reply  in  that  other 
case.  I  recall  now  that  I  expressly  avoided  reply 
ing  in  this  case  for  fear  I  would  waive  something. 
I  now  demur  to  that  answer  and  counterclaim." 

Captain    Henry    was    making    dog-ears    on   the 


44  NISI  PRIUS 

Code  and  silently  felt  the  earth  gradually  slipping 
from  under  his  feet. 

By  the  Court :  "  Let  the  demurrer  to  the  answer 
and  counterclaim  be  sustained  and  let  the  case  be 
dismissed  without  prejudice." 

The  call  of  the  docket  was  then  resumed  and 
all  the  common  law  jury  cases  set  down  for  trial, 
after  which  court  adjourned  for  the  day. 

As  lawyers,  judge,  and  court  officials  filed  out 
of  the  court-house  and  assembled  on  the  yard, 
Judge  Cole,  being  in  the  assembly  of  a  dozen  or 
more,  looked  across  the  street  and  spied  Captain 
Henry  hurrying  along,  whereupon  he  called  out 
to  him: 

"  Captain  Henry,  come  over  for  a  moment, 
please.  I  want  to  speak  to  you  about  a  little  mat 
ter." 

Captain  Henry,  turning  abruptly,  hesitated  a  mo 
ment,  then  walked  directly  towards  the  crowd, 
which  included  Judge  Lowden,  Judge  Cole,  and  a 
dozen  others.  When  Henry  had  gotten  well  into 
the  circle,  Judge  Cole,  with  a  serious  mien  and 
freezing  dignity,  said: 

"  Permit  me  to  suggest  that  the  assizes  that  as 
semble  in  the  temple  there " —  pointing  to  the 
court-house  — "  is  not  the  court  of  a  justice  of  the 
peace  nor  a  Greenwood  police  court;  but,  sir,  it  is 
the  circuit  court,  the  circuit  court,  sir." 


CHAPTER  III 

THAT  evening  the  "  feast  was  spread  "  again  at  old 
Hanna's  hotel  —  supper,  as  it  has  been,  is,  and 
doubtless  will  ever  be  designated  in  this  land  south 
of  the  Mason  and  Dixon  line.  Commonwealth's 
Attorney  Haggard  and  Judge  Lowden  had  already 
found  chairs  under  the  maple  on  the  pavement.  A 
quiet  moon  swung  high  in  the  heavens  and  sent 
its  silvery  rays  scattering  through  the  trees.  These 
two  faithful,  incorruptible,  and  patient  public 
servants  smoked  in  silence,  relishing  the  serene  and 
beautiful  night  perhaps  more  than  conversation. 
Men  on  intimate  terms  can  thus  ignore  convention 
with  impunity.  By  and  by  Host  Hanna,  having 
performed  his  pro  rata  of  the  evening  chores,  came 
to  the  door  of  his  hostelry,  discovered  the  presence 
of  the  smokers,  and  forthwith  joined  them.  He 
had  a  deep  prejudice  against  the  Anglo-Saxon 
word  "  Mister."  With  him  it  must  be  "Judge," 
or  "Colonel,"  or  "Captain,"  or  "Major,"  or 
"  Bill,"  or  "  Tom  "  ;  but  "  Mister  "  never.  As  is 
manifest,  he  had  had  no  difficulties  on  this  score 
regarding  Judge  Lowden.  Not  so  Haggard. 
When  that  official  first  qualified  and  made  his 
initial  appearance  in  Greenwood  Hanna  was  con 
fronted  with  his  old  difficulty.  He  at  once  and 
without  ceremony  handed  to  Haggard,  gratis,  the 
not  unusual  title  of  "  Colonel,"  and  since  that  hour 
had  always  addressed  him  after  that  fashion. 

45 


46  NISI  PRIUS 

"  Colonel,"  he  said,  addressing  the  State's  coun 
sel,  "  do  you  expect  to  try  the  Dudley  case  this 
term?" 

"  Hard  to  say,  Jim ;  but  the  County  Attorney 
thinks  we  will  be  ready." 

"  Burned  if  I've  ever  believed  that  young  fel 
low  guilty,"  ventured  Jim. 

"  There  is  grave  doubt  about  it,  but  I'm  inclined 
to  fear  he  killed  Thomas.  There  are  some  over 
powering  circumstances  connected  with  it  all,"  re 
plied  Haggard. 

"  Well,"  replied  Jim,  "  I've  been  on  many  a 
jury,  but  if  ever  I  hang  a  man  on  circumstantial 
evidence  or  a  nigger's  testimony  I  hope  somebody 
will  have  me  bored  for  the  simples." 

So  ended  the  reference  to  the  somewhat  sensa 
tional  and  widely  known  case  of  Commonwealth 
of  Kentucky  vs.  Hiram  Dudley.  Of  this  cause 
celebre  more  anon. 

"  Gentlemen,"  resumed  Jim,  after  a  brief  si 
lence,  "  I  desire  to  announce  to  the  Court  and  his 
able  prosecutor,  that  by  a  stroke  of  good  fortune, 
or  by  reason  of  supposed  political  influence,  I  have 
a  gallon  of  ten-year-old.  Judge  Hun  is  looking 
after  his  fences  in  his  race  for  renomination  for 
Judge  of  the  Court  of  Appeals.  He  passed 
through  this  pasture  yesterday,  and  right  here  is 
where  he -found  quite  a  break  in  his  fence.  Is  it 
necessary  for  me  to  remark  that  the  gap  is  re 
paired  ?  " 

"  Bear  in  mind,  my  distinguished  county  boss," 
interposed  Haggard,  "  Judge  Hun  intended  that 


NISI  PRIUS  47 

investment  to  circulate  freely  among  the  electorate ; 
but  I  see  his  plans  are  going  amiss.  Do  you 
suppose  I,  after  my  long  and  hot  ride  to-day, 
would  spurn  a  real  old-fashioned  Greenwood 
toddy?" 

Hanna  was  off  on  the  instant  in  quest  of  ice, 
sugar,  water,  and  the  nectar  —  or  poison  —  ac 
cording  to  the  view-point.  Returning  with  the 
aforementioned  ingredients,  the  host  proceeded, 
with  uncommon  and  unconcealed  delight,  to  mix 
two  extremely  mild  decoctions,  it  being  a  rare 
thing  for  either  of  his  guests  to  indulge.  Ere  he 
could  complete  the  task  he  heard  footsteps  and, 
looking  up  the  pavement,  saw  the  Master  Commis 
sioner  of  the  Mecklenberg  Circuit  Court,  one 
James  Higgins,  approaching. 

Now,  foxhounds  and  pointers  and  setters  are 
said  to  have  noses  for  things  that  creep  and  things 
that  fly,  but  James  Higgins,  Master  Commissioner, 
had  a  nose  for  things  that  flow.  From  the  back 
room  of  some  distant  grocery  store  James  had 
been  observed  suddenly  to  raise  himself,  sniff  the 
air,  and  forthwith  leave  his  companions.  He  made 
straight  to  the  source  of  the  aroma.  But  if  James 
Higgins,  Master  Commissioner,  could  sniff  from 
afar,  James  Hanna,  host,  could  suddenly  hide 
"  licker."  That  is  a  most  essential  accomplish 
ment  to  such  of  Hanna's  philosophy  who  reside 
in  what  law  books  denominate  "  dry  territory  " ; 
and  Greenwood  had  been  "  dry  "  (in  books)  these 
many  years. 

No  sooner,  then,  had  Hanna  realized  the  gravity 


48  NISI  PRIUS 

of  the  situation,  which  gravity  consisted  in  the 
possible  discovery  and  immediate  consumption  of 
his  possession,  than  he  had  the  liquor,  concomitants, 
and  all  deftly  hidden  under  his  chair  and  was 
quietly  and  indifferently  watching  the  majestic 
passage  of  the  moon  across  the  heavens. 

"  Fine  night,  gentlemen,"  ventured  the  hopeful 
Commissioner. 

"  Magnificent,"  in  a  duet  from  Haggard  and 
Lowden,  Hanna  rather  coldly  silent. 

"Balmy;  but,"  continued  Higgins,  "I  feel 
rather  chilly.  Guess  I'm  taking  cold."  This  fol 
lowed  by  a  lamentable  effort  to  cough. 

"  Higgins,"  said  Hanna,  looking  at  the  moon  and 
apparently  oblivious  to  the  cough,  "  did  you  ever 
realize  what  a  lot  of  machinery  is  required  up  there 
to  navigate  that  moon  and  all  those  stars  ?  " 

"  Never  did,"  replied  Higgins,  as  if  to  dismiss 
such  a  foreign  topic.  He  then  took  a  chair  just 
opposite  Hanna  and  suspectingly  shot  a  glance  in 
his  direction,  as  if  to  pierce  the  shadow  beneath  his 
chair. 

"  You  ought  to  read  up  on  that,"  said  Old  Jim, 
bringing  his  knees  closer  together,  as  Higgins  ren 
dered  the  second  act  of  his  coughing  comedy. 

"  Mistah  Hanna,"  called  Fox  from  the  hotel 
door,  "  you  is  wanted  at  the  phone." 

Have  you  ever,  O  gentle  reader,  seen  a  man 
drowning  in  the  sea?  Did  you  observe  the  mute 
but  eloquent  appeal  in  his  despairing  look?  If  so, 
you  know  something  of  Old  Jim's  despair  at  hear 
ing  these  words.  Great  generalship  manifests  it- 


NISI  PRIUS  49 

self,  however,  in  the  twinkling  of  an  eye.  His  dis 
comfiture  was  short-lived. 

"  Tell  him,"  he  said,  "  I've  gone  to  the  lodge, 
and  to  leave  his  number." 

"  Yas,  sah,"  obeyed  the  handy  Fox. 

Now  Old  Jim,  having  barely  escaped  this  disas 
ter  and  fearing  at  any  moment  a  second  such  dan 
ger,  determined  to  get  rid  of  Higgins  quickly. 
The  four  rather  liberal  drinks  he  had  taken  since 
supper  were  calling  for  reinforcements,  and  then 
the  whole  supply  was  in  jeopardy;  not  such  jeop 
ardy  as  arises  on  a  demurrable  indictment,  but 
jeopardy  real  and  actual.  It  was  thus,  then,  that 
this  high  priest  of  the  Hanna  House  sent  his  anx 
ious  and  thirsty  guest  on  his  way  rejoicing. 

"  Well,  sir,  if  I  wasn't  so  tired  and  worn  out, 
I'd  go  down  to  Henry  Dance's  and  make  him  let 
me  in  on  that  jug  of  his.  Henry  is  a  sly  old  fox, 
but  when  I  met  the  night  train  he  was  there,  and  I 
saw  him  sign  for  his  jug.  Clever  fellow,  old 
Dance;  never  refused  a  man  a  drink  in  his  life. 
Fact,  ain't  it,  Higgins  ?  " 

"  No  doubt  about  it,  Jim,"  answered  Hig 
gins,  rising  with  assumed  deliberation.  "  Well, 
gentlemen,"  he  continued,  "  good-night  and  pleas 
ant  dreams,"  saying  which  the  Master  Commis 
sioner  proceeded  not  too  slowly  down  the  street. 
When  he  had  gotten  well  out  of  hearing  Old  Jim 
drew  out  his  safely  guarded  prize,  remarking 
dryly : 

"  Gentlemen,  both  of  you  are  wise  and  profound 
lawyers.  Here's  a  difficult  problem  for  you: 


50  NISI  PRIUS 

Which  course  should  you  take  from  this  spot  were 
you  en  route  to  Henry  Dance's  house  and  were  to 
tal  strangers  in  these  parts  ?  " 

Amid  the  laugh  that  followed,  the  two  lawyers 
sipped  their  mild  mixture,  while  Old  Jim  took  a 
drink  that  would  have  shamed  a  sailor  on  shore 
leave. 

Thus  ended  the  first  night  of  the  June  term  in 
the  good  town  of  Greenwood,  in  Mecklenberg 
County. 


CHAPTER  IV 

THE  next  day  the  petit  or  trail  jury  was,  after  the 
usual  delay  consequent  upon  the  qualification  of 
that  body,  duly  empaneled  and  the  uninteresting 
grind  of  the  first  trial  day  was  begun.  The  Court, 
from  the  bench,  patiently  called  the  docket,  while 
Haggard  at  his  table  looked  over  each  indictment, 
taking  divers  and  sundry  orders  in  language  unin 
telligible  to  the  uninitiated.  "  Continued  with  an 
alias  to  Logan  " ;  "  filed  away  with  leave  to  rein 
state  " ;  "  dismissed  for  want  of  proof  " ;  "  contin 
ued  with  an  attachment  for  John  Hop  " ;  "  plea  of 
guilty  and  a  sixty  dollar  fine."  These  and  other 
kindred  orders  were  called  out  in  the  clear,  rich 
voice  of  the  State's  Attorney. 

After  an  hour  or  two  a  case  was  called  in  which 
all  the  Commonwealth's  witnesses  responded,  and, 
following  a  brief  consultation  with  them,  Haggard 
uttered  the  words  that  had  come  to  be  a  terror  to 
lawyers  over  the  district,  viz :  "  The  Common 
wealth  is  ready."  The  defendant's  affidavit  for  a 
continuance  was  held  to  be  insufficient,  and  the 
cause  was  under  way.  The  proof  was  heard  and 
plainly  showed  that  public  worship  had  been  dis 
turbed —  plainly  to  everybody  except  Judge 
Thompson,  the  defendant's  counsel.  He  addressed 
the  jury  with  his  high-pitched  voice.  He  became 
excited.  He  more  screamed  than  spoke.  He  ex- 
Si 


52  NISI  PRIUS 

ceeded  his  allotted  time,  and  was  stopped  by  the 
Court. 

Haggard  followed  in  a  five-minute  speech  that 
contained  no  surplus  words.  The  jury  rendered 
a  verdict  of  guilty.  A  number  of  other  causes 
were  disposed  of  by  order.  Then  followed  in 
rapid  succession  the  trial  of  a  defendant  charged 
with  breach  of  the  peace,  another  with  selling  li 
quor  in  local  option  territory,  a  railroad  company 
for  obstructing  a  public  highway,  a  man  charged 
with  operating  a  poolroom  without  a  license,  two 
others  for  gaming.  And  so  the  day  wore  on,  and 
when  the  hour  of  adjournment  had  arrived  the 
Court  congratulated  himself  upon  the  volume  of 
business  dispatched. 

The  mills  of  the  gods  do  grind  exceedingly  fine, 
but  they  grind  slowly,  whereas  the  Mecklenberg 
circuit  court  grinds  exceedingly  fine  and  not 
slowly.  Delays,  waste  of  time,  and  waste  of  pub 
lic  money  in  the  administration  of  justice  through 
the  necessary  instrumentality  of  the  circuit  court 
are  due  to  one  agency,  and  one  alone  —  the  judge 
upon  the  bench.  Where  he,  like  Judge  Lowden, 
combines  the  executive  with  the  jurist,  the  Com 
monwealth  profits.  A  judge  without  the  capacity 
to  expedite  things,  safeguarding  justice  at  the 
same  time,  depletes  the  public  treasury  and  depletes 
the  supply  of  public  esteem  and  faith  in  the  effi 
cacy  of  courts.  Such  a  lot  of  judges,  presiding  in 
the  fog  of  precedent,  provoked  the  greatest  master 
of  the  English  language  to  scorn  and  despise  "  the 
law's  delay."  Often  have  they  stirred  a  demon  in 


NISI  PRIUS  53 

the  breasts  of  the  multitude,  and,  after  a  poor 
trembling  wretch  has  been  rushed  to  the  gallows, 
without  the  intervention  of  court  or  jury,  this  be 
fogged  jurist  wisely  discourses  upon  the  evils  of 
mob  violence.  It  ought  to  be  possible  to  place  him 
beneath  the  gallows,  thus  affording  him  the  oppor 
tunity  of  seeing  the  fearful  ruin  he  has  wrought. 
And  then  with  the  dead  wretch  above  and  the  de 
laying  wretch  below,  two  things  would  be  together 
that  ought  to  be  together,  viz :  Cause  and  Effect. 

You  philosophers  who  denounce  mob  law,  do 
not  go  hence  and  misquote  these  lines.  The  mob 
in  all  cases  (and  there  are  no  exceptions)  is  but 
the  slumbering  savage  within  us.  It  is  the  sense 
less,  wild,  barbaric  murder  of  one  man  by  many. 
Were  any  member  of  any  mob  to  be  apprehended, 
his  would  be  the  loudest  demand  for  a  trial  by 
jury  in  an  orderly,  just,  and  discriminating  court. 
And  yet  this  is  the  thing  he  is  assuming  to  deny  to 
a  wretched,  friendless  culprit!  But,  O  you  phi 
losophers  and  slow  judges,  who  vent  one  hundred 
per  cent,  of  your  energies  in  denouncing  the  effect, 
so  modify  your  arithmetic  as  to  address  fifty  per 
cent,  thereof  to  the  cause,  and  perhaps  the  remain 
ing  fifty  per  cent,  in  course  of  time  will  come  to  be 
treasury  stock  which  you  will  have  no  occasion  to 
float. 

And  to  you,  brothers  in  the  criminal  practice, 
take  this  word  from  one  of  your  own  guild.  Pray 
do  not  denounce  these  lines  as  a  desire  that  men 
charged  with  crime  be  hurried  to  the  gallows  un 
der  the  mere  forms  of  law  merely  to  avoid  the 


54  NISI  PRIUS 

bloodthirsty  demands  of  frenzied  lynchers.  There 
is  a  glorious,  dignified,  and  happy  medium.  In 
Lowden's  court  you  have  full  and  ample  time  and 
opportunity  to  prepare  for  trial.  The  sheriff 
stands  ready  to  produce  all  your  witnesses,  a  jury 
practically  of  your  own  choosing  is  afforded  you. 
You  are  heard  patiently  and  intelligently  on  all 
questions;  there  is  no  unseemly  haste  —  nor  un 
seemly  delay.  There  is  only  this  one  iron-clad 
rule  of  practice  —  your  case  must  be  tried.  He 
who  demands  more  should  have  less.  In  a  long 
career,  the  best  bit  of  advice  a  brilliant  old  lawyer 
ever  gave  to  the  young  who  drank  from  his  wis 
dom  was  this :  "  Young  man,  learn  well  this 
phrase,  '  Your  Honor,  I'm  ready.'  " 


CHAPTER  V 

IT  was  past  ten  o'clock  that  night  when  Haggard 
dropped  into  Judge  Lowden's  room.  The  judge 
had  repaired  thereto  immediately  after  supper  to 
read  and  to  prepare  to  decide  a  number  of  motions, 
demurrers,  et  id  omne  genus,  that  had  been  submit 
ted,  including  some  minor  chancery  cases  sub 
mitted  for  final  adjudication.  His  countenance 
was  lit  up  by  an  amused  expression.  Observing 
the  look  of  inquiry  in  Haggard's  face,  the  Judge 
said : 

"Haggard,  here's  a  divorce  suit  brought  by  old 
Jumpus.  Scott  signs  the  answer  as  attorney  for 
the  defendant.  They  have  taken  the  depositions 
of  two  witnesses.  These  depositions  were  taken 
before  Jumpus,  as  examiner,  to  all  of  which  he 
solemnly  certifies.  He  also  certifies  to  the  credi 
bility  of  the  two  witnesses  and  that  Scott  was  pres 
ent,  but  waived  cross-examination,  and  that  the  sig 
nature  of  the  witnesses  was,  by  mutual  consent, 
waived.  What  say  you,  Mr.  State's  Attorney,  to 
that  record?" 

"  Actions  for  divorce,  being  a  specialty  with  my 
friend  Jumpus,"  replied  Haggard,  "  I  can  appre 
ciate  the  short  and  speedy  road  he  has  taken  to  a 
judgment" 

"  Seriously,"  interposed  the  Judge,  "  in  this  case 
the  petition  is  demurrable;  the  answer  is  demur- 
rable;  the  attorney  for  plaintiff,  in  his  capacity  as 

55 


56  NISI  PRIUS 

examiner,  takes  his  own  depositions;  the  questions 
are  fearfully  leading,  the  answers  all  transparently 
couched  in  the  language  of  the  plaintiff's  counsel; 
everything  is  waived,  which  fact  is  certified  to  me 
by  the  plaintiff's  attorney,  and " 

This  sentence  was  not  completed,  for  at  that 
moment  a  knock  was  heard  at  the  door  and,  re 
sponding  to  Judge  Lowden's  "  Come  in,"  in  walked 
no  less  a  personage  than  Marcellus  Jumpus,  Esq., 
attorney  and  counselor.  With  a  chivalry  of  an 
other  age  Jumpus,  possessed  of  his  usual  embar 
rassment  consequent  upon  coming  into  the  pres 
ence  of  the  Judge,  said : 

"  Pardon  me,  gentlemen,  for  intruding  myself, 
but,  Judge,  did  you  get  that  divorce  case  of 
Boggess  vs.  Boggess,  submitted  this  morning?" 

"  Yes,  I  have  just  read  the  record,"  responded 
Lowden. 

"  There's  two  children  in  that  case,"  said 
Jumpus,  "  and  in  drawing  the  judgment,  how  must 
I  dispose  of  them?  " 

"  I  cannot  give  you  a  judgment  in  this  case  as 
it  is  now  presented,"  said  the  Judge. 

"Why,  what's  the  matter,  Judge?"  inquired 
the  unhappy  attorney. 

"  Your  petition,"  said  the  Court,  "  is  bad  on 
demurrer.  The  grounds  for  divorce  are  statutory, 
and  the  ground  alleged  by  you  is  not  found  among 
those  enumerated  in  the  statute.  You  allege  '  that 
the  defendant  is  perverse  and  obtuse,  and  when  the 
plaintiff  ordered  him  to  go  and  fetch  a  back-log 
he  replied,  "  Dura  the  back-log,  I'm  going  to  Pond 


NISI  PRIUS  57 

Creek  to  ketch  a  mess  of  fish."  You  and  Scott 
can't  waive  the  signature  of  these  witnesses.  If 
that  were  permitted,  any  man  and  woman  in  Meck- 
lenberg  County  could  readily  obtain  a  divorce. 
You,  being  attorney  for  the  plaintiff,  cannot  take 
these  depositions  as  examiner.  Think  how  wide 
that  would  open  the  door.  Now,  let  us  read  this 
deposition  of  Mandy  Bunch ;  and  bear  in  mind  that 
you  wrote  the  questions  and  answers  and  that  you 
are  attorney  for  the  plaintiff  seeking  the  divorce. 
Omitting  the  style  of  the  case,  this  document  reads 
thus: 

" '  The  deposition  of  Mandy  Bunch,  taken  at 
the  law  office  of  Marcellus  Jumpus,  in  Greenwood, 
Ky.,  by  consent  of  the  parties,  on  April  10,  18 — , 
to  be  read  as  evidence  on  behalf  of  the  plaintiff  on 
the  trial  of  the  above  styled  cause,  now  pending  in 
the  Mecklenberg  Circuit  Court.  The  witness  be 
ing  duly  sworn  by  Marcellus  Jumpus,  examiner, 
deposed  as  follows,  examined  by  Marcellus  Jumpus, 
attorney  for  plaintiff. 

"  '  Q.  Mandy,  how  old  are  you  and  do  you 
know  Mike  Boggess  and  Emma  Boggess,  and  how 
long  have  you  known  them? 

"'A.     Thirty-six;  yes;  ten  years. 

"  '  Q.  Is  it  not  a  fact  that  Emma  has  always 
conducted  herself  as  a  proper  wife,  in  all  respects, 
and  is  it  not  a  fact  that  Mike  is  trifling  and  no  ac 
count  —  and  has  been  a  long  time  ? 

"  '  A.     Yes,  sir. 

"  '  Q.     State  whether  the  act  of  divorce  set  up 


58  NISI  PRIUS 

in  the  petition  occurred  in  Mecklenberg  County, 
and  within  five  years  before  this  suit  was  filed? 

"'A.     Yes,  sir. 

"  '  Q.  I'll  ask  you  if  Mike  spends  his  time  fish 
ing  in  Pond  Creek  or  in  looking  after  his  family, 
and  will  get  you  to  state  if  he  is  a  poor  pro 
vider? 

"'A.     Yes,  sir. 

" '  Q.  Were  you  present  at  his  house  in  Feb 
ruary  last,  one  day,  when  Emma  ordered  him  to 
bring  some  stove  wood?  If  you  say  you  were, 
isn't  it  true  that  he  refused  to  get  it  and  went  off 
fishing?  State  fully  about  this? 

"'A.     Yes,  sir. 

"  *  Q.  If  you  know  any  other  facts  about  this 
case,  please  state  them  in  your  own  way? 

"  '  A.     Don't  know  any  more. 

" '  Cross-examination  waived. 

" '  I,  Marcellus  Jumpus,  an  examiner  in  and  for 
Mecklenberg  County,  Kentucky,  hereby  certify  that 
the  foregoing  deposition  of  Mandy  Bunch  was 
taken  before  me  at  the  time  and  place  mentioned 
in  the  caption.  That  I  wrote  the  questions  down 
as  asked  by  plaintiff's  attorney  and  took  down  the 
answers  of  the  witness.  The  plaintiff  was  present 
in  person  and  by  Attorney  Marcellus  Jumpus,  that 
the  defendant  was  not  present,  but  was  represented 
by  his  attorney,  William  Scott.  That  the  witness 
Mandy  Bunch  is  a  person  of  good  moral  character 
and  worthy  of  belief  under  oath. 

" '  Witness  my  hand  as  such  examiner  this 
April  — ,  1 8 — .  MARCELLUS  JUMPUS, 

"  '  Ex.  M.  Co.,  Ky.' 


NISI  PRIUS  59 

"  Now  what  do  you  say  the  Court  should  do  in 
this  case,  Mr.  Jumpus  ?  "  concluded  Judge  Lowden. 

"  I  told  my  client,"  said  Jumpus,  "  that  there 
were  some  close  questions  involved  in  this  case 
when  I  consented  to  bring  the  suit.  Just  pass  it 
in  the  morning,  Judge,  and  I  will  think  over  it," 
after  which  Marcellus  rather  sheepishly  bowed  him 
self  out. 

Haggard,  who  during  this  recital  had  been  quite 
buried  in  the  pillows  on  Judge  Lowden's  bed,  to 
which  retreat  he  had  been  drawn  to  avoid  an  ex 
plosion,  now  banished  all  levity  and  wore  a  se 
rious  mien. 

"  Judge,"  said  he,  "  isn't  that  a  commentary,  a 
sad  commentary,  on  the  caliber  of  the  profession 
in  Kentucky?  How  is  such  a  thing  possible  in 
this  enlightened  age  in  this  great  State  ?  " 

"  There's  no  difficulty,"  replied  Lowden,  "  to 
ascertain  the  cause  of  the  trouble.  It  is  our  worth 
less  and  archaic  system  of  laws  regulating  the  re 
quirements  for  admission  to  the  bar.  Jumpus  is 
not  alone  in  this  district.  Every  county  has  its 
Jumpus  —  one,  two,  and  some  of  them  more  than 
two.  An  unlettered,  unprepared  fellow  loafs  about 
the  court-house,  absorbs  a  smattering  of  court  pro 
cedure,  and  concludes  he  must  practice  law.  The 
county  judge  promptly  gives  him  the  required  cer 
tificate  of  good  moral  character.  He  makes  his 
application.  The  circuit  judge,  obeying  the  statute, 
appoints  two  lawyers  to  examine  him  touching  his 
knowledge  of  the  law  and  the  practice  thereof. 
They  go  through  the  forms  and  report  him  quali- 


60  NISI  PRIUS 

fied;  hence  his  license,  hence  Jumpus,  hence  this 
record  here  —  Boggess  v.  Boggess." 

"  To  all  of  which,"  added  Haggard,  "  I  can  only 
repeat  the  first  observation  —  a  sad  commentary. 
There  is  a  consolation  in  knowing,  however,  that 
their  sphere  for  disastrous  operations  is  limited. 
Few  people  retain  them." 

"  Very  true,"  the  Judge  replied,  "  but  some  do 

—  once." 

And  the  two  men  lapsed  into  thought  and  said 
no  more. 

Since  the  night  this  very  usual  and  ordinary  oc 
currence  took  place  —  some  years  since  —  the  Gen 
eral  Assembly  of  the  Commonwealth  of  Kentucky, 
at  the  urgent  behest  of  a  group  of  far-seeing,  State- 
loving  men,  threw  off  the  lethargy  of  years'  stand 
ing  and  smashed  the  old  system,  providing  in  its 
stead  an  adequate  and  thorough  means  of  testing 
the  qualifications  of  each  applicant  for  admission 
to  the  bar  before  he  should  be  let  loose  on  the  pub 
lic.  The  new  law  passed  both  Houses  of  the  Leg 
islature  by  practically  a  unanimous  vote,  and  a  new 
day  had  dawned.  Henceforth  lawyers,  like  unto 
physicians,  surgeons,  dentists,  even  undertakers, 
must  be  qualified  to  practice  before  being  suffered 
to  do  so.  But  the  delight  of  the  Commonwealth 
was  short-lived.  A  Governor  —  himself  a  lawyer 

—  vetoed  the  measure,  delivering  some  incoherent 
excuses,    among    which    was   this:    The   new   law 
worked  a  hardship  on  the  country  boy,  which,  on 
being  interpreted,  means  that  the  country  boy  can 
not     prepare     himself.     While     comparisons     are 


NISI  PRIUS  61 

odious,  and  the  metropolitan  lawyers  are  admit 
tedly  among  the  ablest  in  the  State,  the  annals  of 
the  Commonwealth  from  infancy  will  bear  witness 
to  the  achievements  of  her  country  youths,  who 
have  adorned  the  bench  and  illuminated  the  bar. 
The  so-called  country  boy  may  desire  protection, 
but  not  such  protection  as  demands  the  sacrifice 
and  surrender  of  his  self-respect. 


CHAPTER  VI 

THE  next  morning  at  nine  o'clock  the  court  was 
convened  with  usual  promptness.  The  minutes  of 
the  previous  day's  business  were  read  by  Tom  New 
(the  clerk  that  always  led  to  the  belief  that  Nov 
elist  Dickens  lived  in  vain).  Had  Tom  a  score  of 
deputies  they  should  not  read  his  minutes.  He 
could  not  forego  that  wise  look  over  his  glasses 
when  he  finished  the  line  "  ordered  that  court  ad 
journ  until  to-morrow  morning  at  nine  o'clock." 

Motions  were  called  for,  the  Court  addressing 
each  member  of  the  bar  separately. 

"  Yes,  your  Honor,"  responded  Judge  Thomp 
son,  when  his  name  was  called,  "  I  have  a  motion." 

He  then  proceeded  to  explain  the  status  of  some 
case,  after  which  explanation  the  Court  inquired 
as  to  what  his  motion  was.  Thompson  replied 
that  he  wanted  to  file  so-and-so  later  in  this  term. 
This  procedure  occurred  every  morning  at  motion 
hour  throughout  every  term.  Judge  Cole  also  had 
a  motion.  He  arose,  holding  in  his  hand  two  pre 
pared  pleadings,  one  of  which  he  filed,  and  was  in 
the  act  of  filing  its  fellow  when  it  occurred  to  him 
to  "  save  the  other  one  for  to-morrow."  He  took 
his  seat  abruptly.  Colonel  Stevens  and  Tom  Hen 
derson  briefly  argued  a  demurrer  in  some  railroad 
case.  Captain  Henry  filed  what  he  termed  an  an 
swer  as  "  gardeen  ad  litem."  Tobias  Mathews 
filed  two  separate  reports  as  attorney  for  non-resi- 

62 


NISI  PRIUS  63 

dent  defendants.  Jumpus  asked  leave  until  the 
next  term  to  file  an  amended  petition  in  Boggess 
v.  Boggess.  Judge  Yust  of  Madisonville,  a  very 
towering  oak  of  a  man,  a  giant  in  frame  and  in  in 
tellect,  moved  for  a  rule  against  the  Master  Com 
missioner,  to  show  cause  why  he  had  not  executed 
a  certain  order  of  distribution  made  at  the  previous 
term.  A  half  a  dozen  other  attorneys,  who  were 
interested  in  the  same  matter,  joined  in  the  demand, 
by  spontaneous  acclaim,  each  looking  daggers  at 
the  Master  Commissioner. 

Now  James  Higgins,  Master  Commissioner,  is 
the  same  James  Higgins  who,  on  an  occasion  of 
which  the  reader  has  been  heretofore  advised,  went 
off  to  Henry  Dance's  in  search  of  Jim  Hanna's 
will-o'-the-wisp.  Some  of  his  characteristics  were 
made  manifest  on  that  occasion.  But  he  had 
others.  He  was  a  living,  walking  apology,  and 
courtesy  was  his  monomania.  His  courtesy  was 
not  the  ordinary  kind  observed  in  general;  it  was 
rather  intermingled  with  gallantry,  chivalry,  and 
Chesterfieldianism.  This  characteristic  had  been 
more  pronounced  at  this  term  of  court  than  ever 
before,  in  view  of  the  fact  that  Higgins  had  heard 
certain  well-defined  and  distinct  mutterings  emanat 
ing  from  certain  other  politicians,  who  had  inti 
mated  that  no  man  should  hold  the  office  of  Master 
Commissioner  forever.  There  were  some  vague 
expressions  about  the  ancient  and  time-honored 
doctrine  of  democracy  — "  rotation  in  office  " ;  mut 
terings  about  rewards  due  other  boys  in  the 
trenches.  Also,  let  it  be  said,  in  that  wonderful 


64  NISI  PRIUS 

organization  and  brotherhood  known  as  "  states 
men  who  keep  their  ears  to  the  ground,"  James 
was  the  chief  high  priest.  No  tremor  or  rumble 
or  quake,  howsoever  slight,  ever  failed  to  be  reg 
istered  on  his  seismograph. 

Now,  from  all  of  this  it  will  be  seen  at  once 
that  if  James  had  been  a  Chesterfield  prior  to  the 
hearing  of  these  distant  rumblings,  after  hearing 
and  thoroughly  grasping  their  meaning,  why,  may 
it  please  the  Court,  he  became  simply  two  Chester 
fields.  When  Judge  Yust,  who  on  occasion  could 
look  the  part  of  the  Colossus  of  Rhodes,  moved 
for  this  rule,  and  in  a  chorus  six  or  seven  other 
lawyers  joined  in  the  demand,  Higgins,  whose  offi 
cial  efficiency  was  already  in  the  limelight,  imme 
diately  put  on  his  most  humble  and  apologetic 
countenance. 

"  Your  Honor  and  gentlemen,"  he  began,  "  I 
must  humbly  beg  your  pardon.  I'm  a  gentleman. 
Your  Honor  is  a  gentleman.  You  are  gentlemen. 
We  are  all  gentlemen.  I've  been  Master  Commis 
sioner  of  this  honorable  court  for  years," — 'then 
reflecting  a  moment  — "  for  a  few  years,  I  may  say, 
and  if  I  have  ever  done  an  unkind  thing  I  do  not 
know  it.  Judge,  I  try  to  do  my  duty.  Does  your 
Honor  know  of  any  more  faithful  public  servant? 
I  believe  in  the  doctrine  announced  and  promul 
gated  by  that  peerless,  matchless,  unsullied  Ne- 
braskan  who " 

Here  Judge  Lowden,  realizing  his  drift,  inter 
rupted  Higgins.  To  the  auditors  who  knew  him  it 
was  evident  he  was  bent  on  burying  in  oblivion  the 


NISI  PRIUS  65 

oration  Cicero  delivered  on  the  Conspiracy  and  the 
one  Demosthenes  delivered  on  the  Crown. 

"  Mr.  Higgins,"  said  the  Court,  "  you  will  have 
to  make  a  written  response  to  the  rule,  in  the  reg 
ular  way.  The  Court  cannot  take  the  matter  up 
m  this  manner.  Mr.  Clerk,  give  me  the  criminal 
docket." 

And  that  day's  grind  began. 

Before  any  of  the  regular  criminal  trials  were 
begun,  Marcellus  Jumpus  announced  that  there  was 
a  lunatic  present  "  who  desired  an  inquest  into  his 
insanity."  The  court  concluded  to  dispose  of  the 
case  at  once,  rather  than  keep  the  unfortunate  de 
fendant  waiting.  Accordingly,  the  demented  one 
was  brought  to  the  bar  and  a  jury  called.  The  de 
fendant,  Nat  Mann,  seemed  rational.  He  had  an 
aged,  feeble  appearance,  but  gave  no  outward  or 
visible  sign  of  distressed  mentality.  While  the 
jury  were  being  qualified,  Jumpus  went  over  and 
talked  with  Mann.  Judge  Yust,  who  had  been 
called  out  of  the  court-room  during  these  prelim 
inaries,  returned  and  entered  the  bar  just  at  this 
stage  of  the  proceedings. 

"  Judge  Yust,"  said  the  Court,  "  we  are  going  to 
hold  this  inquest.  Will  you  represent  this  man?" 

Yust,  as  quick  as  a  flash,  said  in  a  stage  whisper : 

"  Who  is  it,  Jumpus,  or  the  other  fellow  ?  " 

After  the  waves  of  the  convulsion  induced  by 
this  shaft  had  subsided,  the  trial  began.  At  first 
it  seemed  from  the  evidence  that  Mann  was  de 
mented,  but  when  Yust  (who  had  read  Mr.  Charles 
Reade's  "  Hard  Cash  " )  proceeded  to  cross-exam- 


66  NISI  PRIUS 

ine  the  witnesses  and  put  Mann  on  the  stand  and 
question  him,  the  oft-repeated  sham  and  farce  was 
laid  bare  —  another  effort  to  incarcerate  an  unde- 
sired,  feeble,  useless  relation  in  a  mad-house.  The 
jury  promptly  found  the  defendant  sane.  The  last 
Judge  Yust  heard  of  the  case  was  Jumpus,  with 
much  gesticulation,  trying  to  explain  to  his  client 
—  the  son-in-law  —  how  it  all  had  transpired. 

Thus  the  court  plodded  on  through  the  day,  and 
when  evening  came  the  docket  had  been  cleared  of 
many  cases.  Indeed,  the  court  was  up  with  the 
docket,  and  it  was  announced  that  the  case  of  Com 
monwealth  vs.  Hiram  Dudley,  charged  with  mur 
der,  would  be  the  first  called  the  next  day. 


CHAPTER  VII 

TEN  o'clock  that  evening  found  Judge  Yust,  "  Col 
onel  "  Haggard,  and  Judge  Lowden  in  the  latter 's 
room  at  Hanna's  hotel.  Relating  sundry  profes 
sional  experiences,  exchanging  anecdotes  apropos 
of  laws,  lawyers,  and  law  courts,  as  is  the  wont  and 
habit  of  the  guild  where  two  or  three  are  gathered 
together,  they  had  spent  a  delightful  hour  or  two 
in  triangular  communion.  Judge  Yust,  a  native  of 
Mecklenberg  County,  who  had  removed  from  its  his 
toric  precincts  only  a  few  years  previous,  was  sur 
charged  with  localisms  and  was  a  veritable  prince 
of  story-tellers.  There  are  lawyers  of  eminence 
and  pronounced  success, —  as  lawyers, —  but  place 
them  on  a  social  occasion  among  such  men  as  Yust 
and  lo !  you  have  a  pig,  an  owl,  a  mule. 

Yust  was  one  of  creation's  rare  combinations. 
In  chancery  he  was  at  home;  before  the  inscrutable 
twelve  he  was  adroit,  persuasive,  dangerous;  at 
work  he  was  a  worker,  at  play  a  player.  Perfectly 
at  home  in  a  company  of  profoundest  scholars,  he 
was  equally  at  ease  among  the  unlettered  and  un 
learned.  In  youth  he  had  read  and  comprehended 
Saint  Paul's  adage,  and  it  had  served  him  many  a 
good  turn  in  his  long  and  picturesque  career  at  the 
bar. 

He  had  just  concluded  an  anecdote  applicable  to 
James  Hanna,  Esq.,  when  that  dignitary,  without 
ceremony,  protruded  his  blond  head  in  the  door, 

67 


68  NISI  PRIUS 

hesitated  for  an  instant  and  then  entered.  Jim 
made  it  a  rule  not  to  knock  before  entering,  in  his 
hotel.  He  took  the  ground  that  the  landlord,  ex- 
officio,  had  the  right  of  entry,  and  the  right  of  in 
gress  and  egress,  to  and  from  any  part  of  the 
hostelry  over  whose  destinies  he  presided.  Survey 
ing  the  company  assembled,  he  said : 

"  Fools  rush  in  where  angels  fear  to  tread. 
Judge,  have  you  plenty  of  water?  Do  you  want 
anything?  If  so,  ask  and  it  shall  be  given  unto 
you." 

"  Nothing,  Jim,  thank  you,"  responded  Lowden, 
as  the  host  dropped  into  a  chair  and  proceeded  to 
replenish  his  cob  pipe.  The  Judge,  without  Han- 
na's  vision,  displayed  four  fingers  of  his  right  hand 
to  Yust  and  Haggard,  a  signal  quickly  understood 
by  those  two  old  acquaintances  of  Hanna's.  The 
signal,  on  being  interpreted,  had  this  meaning:  the 
Judge  knew  from  the  tone  of  Jim's  voice,  the  flash 
of  his  eye,  and  his  general  demeanor  that  the  keeper 
of  the  Hanna  House  had  had  just  four  drinks  of 
spirituous,  vinous,  and  malt  liquor.  These  four 
and  no  more  always  oiled  the  tongue  of  this  rare 
and  brilliant  rough  diamond.  Sentiment  and  ro 
mance  at  once  fairly  oozed  from  his  pores.  His 
assembled  observers  congratulated  themselves  on 
the  prospect  of  an  Hannaesque  story. 

Their  prognostications  were  not  without  founda 
tion.  Judge  Lowden,  with  a  knowing  wink  in  the 
direction  of  Haggard  and  Yust,  said,  with  solemn 
countenance : 

"  Jim,  you  drink  too  much  whisky." 


NISI  PRIUS  69 

"  That's  what  Mrs.  Hanna  says,"  replied  Jim. 
"  Peculiar  how  penetrating  minds  run  in  the  same 
error." 

"  But,"  insisted  Lowden,  "  it's  all  your  imagina 
tion.  What  good  do  you  get  out  of  it?  " 

"  Judge,"  said  the  lectured  one,  after  an  appre 
ciable  pause,  "  the  thing  is  efficacious.  The  trans 
formation  that  a  good  drink  of  good  liquor  will 
work  is  wonderful.  I've  seen  that  illustrated  a 
thousand  times.  Did  I  ever  tell  you  " —  here  his 
face  lit  up  — "  my  experience  with  old  Uncle  Si 
David,  which  occurred  in  my  race  for  the  Legis 
lature  years  ago  ?  " 

"  No,  let's  have  it,"  chorused  three  voices  simul 
taneously. 

Hanna  refilled  his  pipe,  cleared  his  throat,  pulled 
his  somewhat  frayed  blond  mustache,  leaned  his 
cane-bottom  chair  against  the  broad  bedpost,  and 
thus  was  related  his  experience  with  old  Uncle  Si 
David : 

"  Well,  sir,  before  I  reached  the  age  of  wisdom 
and  at  a  time  when  I  was  mentally  deficient,  I  was 
seized  with  an  ambition  to  represent  Mecklenberg 
County  in  the  State  Legislature.  You  wouldn't 
look  at  me  now  and  think  I  ever  had  such  notions, 
but  I  did.  It's  true  I  got  beat,  but  that's  not  the 
first  time  the  great  common  people  made  a  fearful 
blunder;  nor  was  it  the  last,  present  office-holders 
excepted. 

"  Well,  to  make  a  long  story  longer,  I  made  a 
canvass  over  the  county,  one  of  these  house-to- 
house  kind,  and  I  think  I  saw  every  voter  in  the 


70  NISI  PRIUS 

county  except  a  few.  Since  that  election  I  have  al 
ways  believed  those  few  were  the  ones  who  voted 
for  me.  In  the  course  of  that  canvass  I  met  many 
kinds  of  characters  and  had  many  experiences.  I 
have  never  forgotten  old  Uncle  Si  David.  He 
lived,  Judge,  out  here  on  the  Russellville  road  and 
had  been  a  power  in  his  bailiwick.  I  think  his 
health  had  been  bad  for  a  year  or  so,  at  least  I 
hadn't  heard  anything  of  him  for  several  years,  un 
til  one  cold,  wet,  gloomy  day  I  met  him  in  the  road 
when  I  was  making  my  race.  The  mud  was  hock 
deep,  the  drizzling  rain  was  cold  and  incessant,  and 
it  was  about  the  gloomiest  day  I  ever  saw.  Uncle 
Si  was  riding  one  of  these  little  sway-back,  gimlet- 
tailed  mules,  which  was  floundering  along  through 
the  mud  depressingly.  Uncle  Si's  face  was  long 
and  he  looked  to  me  as  if  he  hadn't  smiled  in  ten 
years.  It  occurred  to  me  that  I  had  better  'lection- 
eer  with  him,  which  I  proceeded  to  do. 

"  Now,  gentlemen,  be  advised  that  I  had  a  flask 
of  twelve-year-old  in  my  saddle  pockets  —  the  self 
same  despised  article  Judge  Lowden  was  just  abus 
ing. 

"  '  How  are  you  making  it,  Uncle  Si  ? '  said  I  as 
cheerfully  as  possible. 

"  '  Mighty  poorly,  Jim,  mighty  poorly.  Look  at 
those  clouds;  damned  if  it  ever  is  going  to  stop 
rainin'.1 

"  '  I'll  ride  a  piece  with  you,'  said  I,  '  if  you  don't 
object.  How's  the  world  treating  you,  Uncle  Si, 
these  days  ? ' 

"  '  Mighty  hard,  Jim,  powerful  hard,'  said  he. 


NISI  PRIUS  71 

'  Luck  is  eternally  agin  me.  Listen  at  that  rain ! 
Ruin  every  year  of  corn  I've  got.  Jim,  you  know 
that  black  mare  mule  I  bought  at  Duke's  sale  there 
in  Greenwood  four  years  ago?  Well,  she's  had  the 
distemper,  and  it's  gone  to  her  eyes  and  she's  dead 
sure  going  blind.  And  that  foxhound,  Top, 
damned  if  he  didn't  hang  hisself  on  the  paling 
fence  and  died  the  next  day.  Tobacco  ain't  bring 
ing  no  price  at  all,  and  I've  got  ten  thousand 
pounds  hanging  up  which  ain't  worth  strippin'  out 
and  deliverin'.  Did  you  ever  see  a  rainy  spell  hold 
on  as  long  as  this  one?  Durned  if  I'd  recognize 
the  sun  if  it  was  to  come  out.  And  there's  that 
idiot  daughter  of  mine,  Jim,  she  gives  me  and  her 
mammy  a  world  of  trouble.  Helpless  critter  — 
can't  do  nothin',  and  keeps  her  mammy  runnin' 
after  her  all  day.  And  my  boy  Tim  —  strong 
enough,  but  he  don't  seem  to  ketch  on  to  farmin'; 
but  when  the  world  is  dead  agin  a  man  he ' 

"  Uncle  Si  never  finished  this  sentence,  for  at 
that  minute  his  mule  suddenly  went  into  the  mud 
almost  to  his  belly,  very  nearly  throwing  the  old 
man  from  his  saddle. 

"  '  Dad  blast  your  infernal  time,'  said  he,  '  I've 
got  a  notion  to  break  your  damned  thick  head  with 
this  single-tree,'  which  weapon  the  old  man  bran 
dished. 

"  When  Uncle  Si's  mule  pulled  out  of  the  mud. 
we  found  ourselves  very  near  a  big  oak  tree,  and 
as  the  rain  was  coming  down  like  putting  out  fire 
we  stopped  under  it,  hoping  it  would  hold  up. 
Drawing  out  that  flask  I  said  to  Uncle  Si : 


72  NISI  PRIUS 

"  '  Would  you  like  to  have  a  drink  of  this  li 
quor  ? ' 

"  I  could  see  him  brighten  a  little. 

"  '  I  believe  I  will  take  just  a  small  taste,  Jim,' 
says  he.  He  took  the  flask  and,  gentlemen,  I've 
seen  big  drinks  in  my  day,  and  when  pushed  I  can 
take  a  fair  drink  myself,  but  that  drink  of  Uncle 
Si's  is  in  a  class  all  to  itself.  After  he  had  swal 
lowed  it  he  smacked  his  lips,  cleared  his  throat,  and 
sat  down  on  a  log,  holding  the  bridle  of  his  mule. 

"  Having  some  anxiety  as  to  the  ration  supply, 
I  took  a  swallow  myself.  Well,  in  five  minutes 
Uncle  Si's  ill  luck  began  to  turn. 

"  '  Jim/  says  he,  '  the  clouds  are  breaking  off 
in  the  west.  Look  at  that  piece  of  blue  sky  over 
yonder.' 

"And  then  he  said,  'Where's  that  flask?'  I 
handed  it  over  to  him,  and  drink  No.  i  lost  its 
reputation  with  me,  being  eclipsed  by  drink  No.  2. 
We  were  silent  for  some  time  and  then  Si  said :  '  It 
ain't  but  few  cases  of  distemper  that  puts  a  mule's 
eyes  out.  They  do  go  blind  occasionally,  but  it's 
powerful  rare,  powerful  rare.' 

"  '  Maybe  it  don't  ever  happen,'  I  said. 

"  '  Well,  I  have  even  heard  that  said  by  good 
veterinarians,'  he  added,  and  getting  up  from  the 
log,  Si  mounted  his  mule,  saying,  *  Let's  be  going 
on,  Jim.;  it  ain't  rainin'  much.  But  before  we  go, 
I'd  like  to  sample  that  licker  once  more.' 

"  I  handed  him  the  flask  and  inwardly  felt  a 
sympathy  for  the  reputation  of  drink  No.  2.  My 
guess  was  correct,  as  the  old  fellow  emptied  it  to 


NISI  PRIUS  73 

the  last  drop.  We  rode  on  in  the  same  mud,  under 
the  same  black  sky,  in  the  same  cold  rain. 

"  '  Jim,'  says  he,  '  you  see  that  tract  of  fine  land 
over  there?  I  think  I'll  just  buy  that  in  the 
spring.  That  boy  Tim  of  mine  ought  to  have  a 
farm.  He's  just  naturally  a  farmer.  Him  and 
me  differs  sometimes  about  things,  but  it's  ten  to 
one  he's  right  and  I'm  wrong.  Gosh,  he  could 
make  that  dirt  bloom  like  flowers ! ' 

"  I  said  nothing  to  this  and  on  we  rode." 

" '  Jim,'  he  continued  after  a  pause,  '  do  you 
know  this  is  about  the  best  season  I  ever  saw  to 
put  up  tobacco  ?  It's  damp  and  in  fine  order.  My 
neighbors  have  got  it  in  their  heads  that  it  won't 
bring  much  this  season,  but  I  doubt  that  a  whole 
lot.  I  know  one  thing  dead  sure  —  there's  a  light 
crop  in  Virginia  and  Tennessee,  and  I  wouldn't  be 
afraid  to  gamble  on  the  price  soaring  by  early 
spring.  My,  but  this  good  rain  will  be  fine  for 
wheat ! ' 

"  The  old  fellow  looked  the  picture  of  content- 
edness,  and  I  didn't  care  to  do  any  of  the  talking. 

"  '  Jim,'  says  he,  '  you  know  that  hound  that 
hung  hisself  on  the  fence?  Well,  sir,  he  was  old 
and  wore  out,  and  I  would  have  had  to  kill  him 
this  spring,  anyhow.  He'd  done  played  out,  and 
it  was  about  the  best  thing  that  could  have  hap 
pened.  Mandy's  cousin  Eph  has  got  a  bitch, — 
one  of  the  best  that  ever  hit  the  woods, —  and  she's 
going  to  have  a  litter  of  pups  next  month.  Eph 
said  I  could  have  two  of  'em.  They're  by  the  best 
dog  in  these  parts.' 


74  NISI  PRIUS 

'  Uncle  Si,'  said  I,  '  you  are  an  old  experienced 
farmer, —  do  you  think  all  this  wet  weather  will 
hurt  the  ungathered  corn  ?  ' 

"  *  No  danger,  Jim,'  he  said ;  '  corn  that's  ma 
tured  and  is  as  firm  and  solid  as  this  year's  crop 
won't  know  it  rained.  That  reminds  me,  that  idiot 
daughter  of  mine  is  to  help  me  haul  some  corn  to 
morrow.  Jim,  that  girl  is  the  biggest  help  about 
the  place  you  ever  saw.  I  sometimes  reckon  it's 
the  best  thing  for  me  and  Mandy  that  she  is  'er 
idiot.  If  she  had  sense  there  would  be  a  lot  of  no 
'count  boys  hangin'  'round  her  day  and  night.  As 
it  is,  she  is  company  for  her  mammy  and  you  don't 
know  how  much  she  does  about  the  place  every 
day.  There  ain't  a  man  in  Mecklenberg  County 
that  can  beat  her  shellin'  corn.  Well,  Jim,  here's 
my  turnin'  off  place.  I've  got  to  take  this  single 
tree  to  the  blacksmith  shop.  Luck  to  you.  I'm  for 
you,  and  will  make  all  the  boys  turn  out.' 

"  We  stopped,  said  good-by,  and  Uncle  Si  rode 
on  down  the  narrow  lane  in  the  deep  black  mud,  the 
rain-water  dripping  from  his  clothes.  When  he  got 
about  seventy-five  yards  down  the  road  he  turned 
in  his  saddle  and  hallooed  to  me: 

" '  Jim,  don't  wear  yourself  out  in  this  race. 
'Tain't  necessary;  you've  got  it  won  hands  down.' 

"  And  the  old  man  passed  out  of  my  sight.  Gen 
tlemen,  that's  been  a  long  time  ago,  but  I  can  see  old 
Uncle  Si  now  as  plain  as  if  it  was  yesterday — • 

"  And  yet  the  Court  here  says  it's  all  imagina 
tion." 


CHAPTER  VIII 

WHEN  court  convened  the  next  morning  the  atten 
dance  of  the  public  had  been  so  augmented  that 
there  was  scarcely  a  vacant  seat  remaining  in  the 
room.  The  Dudley  murder  trial  was  the  drawing 
card.  The  sheriff  had  diligently  executed  the  va 
rious  processes  for  both  the  State  and  the  defendant, 
summoning  their  witnesses,  of  whom  there.were  not 
a  few.  Friends  and  relations  of  the  defendant  and 
of  the  murdered  man  supplemented  the  attendance 
considerably.  There  was  the  usual  hush  and  ex 
pectancy  that  is  always  incident  to  a  momentous 
trial.  Speculations  and  expressions  of  guilt  and 
innocence  were  whispered.  The  defendant's  wife, 
a  sweet- faced  little  woman,  sat  meekly  and  almost 
tearfully  near  the  defendant's  counsel  table.  Two 
little  boys,  aged  six  and  eight  years  respectively,  sat 
one  on  either  side  of  her.  Each  swung  his  cap  to 
and  fro  and  looked  somewhat  cowed  by  the  press 
ing,  staring  sea  of  strange  faces.  At  intervals  the 
mother  would  gaze  at  her  two  boys  with  infinite 
tenderness  and  draw  them  closer  to  her.  Imagina 
tion  took  wing  at  the  sight  of  this  young  woman 
clinging  to  her  two  brown-haired,  brown-eyed  sons. 
Her  husband  had  been  in  the  Mecklenberg  County 
jail  for  some  months.  You  could  not  reject  the 
mental  photograph  of  this  wife  and  mother  many  a 
desolate,  miserable  night  looking  long  and  tenderly 
at  those  two  brown  heads  on  the  same  pillow,  the 

75 


;6  NISI  PRIUS 

father  penned  in  an  iron  cage  charged  with  murder. 
Gentle,  tender  young  wife  and  mother,  if  you  have 
courage,  prepare  to  employ  it  now,  thine  hour  of 
sore  travail  is  come. 

Back  of  the  prosecutor's  table  were  banked  the 
other  wife  and  the  other  children  —  widow  and 
orphans  of  the  murdered  man.  Haggard  was  in 
his  seat,  and  in  his  rear  sat  the  County  Attorney, 
who,  by  virtue  of  his  office,  assisted  in  the  prose 
cution.  The  countenance  of  the  Commonwealth's 
Attorney  presented  problems  impossible  of  under 
standing.  He  was  seen  to  gaze  long  and  intently 
at  Mrs.  Dudley  and  her  two  handsome  boys.  A 
look  of  indefinable  pathos,  short-lived  as  a  meteor, 
swept  across  his  face,  only  to  be  succeeded  by  his 
customary  calm,  impenetrable  expression. 

While  the  orders  of  the  previous  day  were  being 
read,  Henderson  and  Brownlow,  counsel  for  the  de 
fendant,  entered  and  took  seats  at  their  table.  All 
eyes  were  turned  toward  Tom  Henderson.  He 
had  a  fatigued,  weary  appearance,  as  if  a  great 
weight  rested  on  his  fine,  broad  shoulders.  It  did 
not  require  an  excessively  penetrating  mind  to 
fathom  the  fact  that  this  lawyer  had  not  slept  many 
hours  the  night  previous.  Brownlow  seemed  nerv 
ous,  while  Henderson  appeared  tired,  and  Haggard 
impenetrable  and  fathomless. 

"  Commonwealth  v.  Hiram  Dudley,  indicted  for 
murder,"  said  Judge  Lowden.  "  What  do  you  say 
for  the  Commonwealth,  Mr.  Haggard  ?  " 

"  Your  Honor,  I'll  ask  the  sheriff  to  call  these 
witnesses." 


NISI  PRIUS  77 

The  sheriff  did  as  directed.  All  the  State's  wit 
nesses,  with  a  few  exceptions,  responded. 

"  May  it  please  the  Court,"  said  Haggard,  "  if 
your  Honor  will  indulge  me,  I  will  ask  for  a  few 
minutes  to  talk  to  these  witnesses  before  I  an 
nounce." 

"  Very  well.  Messrs.  Henderson  and  Brown- 
low,  the  Court  suggests  that  you  call  your  wit 
nesses  and  confer  with  them  while  Mr.  Haggard  is 
out,  in  order  to  save  time,"  directed  Lowden. 

"  Certainly,  your  Honor,"  said  Brownlow,  ris 
ing  and  handing  a  list  of  names  to  the  sheriff,  who 
proceeded  to  call  them.  Remarkable  to  state,  every 
witness  answered.  This  case  had  been  continued 
at  the  last  term,  and  these  gentlemen  knew  another 
continuance  on  their  motion  was  well-nigh  out  of 
the  range  of  things  possible.  Accordingly,  they 
bent  every  effort  to  "  get  ready,"  determined  to 
have  it  out  and  over  with.  Henderson  and  Brown- 
low  thereupon  retired,  followed  by  a  great  horde 
of  witnesses. 

After  a  time  the  assembled  spectators  grew  rest 
less  in  waiting.  The  Judge  quietly  read  a  news 
paper,  as  if  unmindful  of  the  unpardonable  incon 
venience  the  onlookers  were  suffering.  After  so 
long  a  time  Messrs.  Henderson  and  Brownlow  filed 
back  into  court,  followed  by  those  who  had  gone 
out  with  them.  They  took  their  seats.  Presently 
Haggard  walked  briskly  in,  conferred  with  the 
Court  in  a  whisper,  and  took  his  seat. 

"Mr.  Jailer,"  said  the  Court,  "bring  out  the 
defendant." 


78  NISI  PRIUS 

The  jailer  hobbled  off  to  execute  that  order,  and 
a  deep  and  penetrating  silence  fell  throughout  the 
room.  At  each  noise  heard  at  the  door  the  audi 
ence  turned  and  stared  to  catch  a  glimpse  of  the 
prisoner.  There  were  many  false  alarms.  Finally 
the  jailer  appeared,  and  by  his  side  walked,  with 
head  erect,  Hiram  Dudley.  He  went  straight  to 
his  wife  and  took  his  seat  at  her  side,  just  in  the 
rear  of  his  attorneys.  He  smiled  bravely  at  his 
little  family.  They  had  breakfasted  with  him  in  the 
jail  that  morning.  He  looked  for  an  instant  into 
the  faces  of  his  two  boys,  and  something  glistened 
in  his  eyes,  but  only  for  a  second's  time.  Then  he 
whispered  in  his  wife's  ear,  and  she  smiled  faintly. 

Hiram  Dudley,  a  young  Mecklenberg  County 
farmer,  was  thirty-four  years  of  age.'k  He  was 
slightly  over  the  average  height,  with  clean-cut  fea 
tures,  a  rather  finely  shaped  head,  dark  brown 
eyes,  and  a  chin  that  at  once  challenged  attention 
for  its  indication  of  strength. 

"What  do  you  say,  Mr.  Haggard?"  said  the 
Court. 

"  The  Commonwealth  is  ready,"  replied  the 
State's  Attorney. 

Mrs.  Dudley  remembered  those  four  words  years 
after  all  these  things  had  transpired. 

"  And  you,  gentlemen  ?  "  said  Judge  Lowden. 

"  The  defendant  is  ready,  your  Honor,"  replied 
Henderson. 

"  Mr.  Clerk,  draw  a  jury,"  ordered  the  Court, 
and  the  celebrated  case  of  the  Commonwealth  v. 
Dudley  wa.s  under  trial. 


NISI  PRIUS  79 

Twelve  of  the  regular  panel  were  called  and 
took  their  seats  in  the  jury  box.  After  being  duly 
sworn,  they  were  interrogated  by  the  State's  At 
torney.  One  was  a  distant  relative  of  the  accused, 
two  others  had  formed  and  expressed  an  opinion, 
and  another  had  formed  an  opinion  from  current 
rumor,  but  did  not  recall  whether  he  had  expressed 
it.  The  four  were  excused  on  peremptory  chal 
lenge.  Their  places  being  rilled,  the  interrogation 
was  resumed.  One  of  the  questions  put  by  Hag 
gard  struck  cold  the  beating  heart  of  the  defend 
ant's  wife. 

"  In  a  case,"  said  he,  "  where  the  law  and  the 
evidence  justified  it,  have  you  such  conscientious 
scruples  against  capital  punishment  as  would  pre 
vent  you  from  returning  a  verdict  of  guilty  and 
fixing  the  penalty  at  death." 

"  Ask  that  again,  please,"  requested  a  rather 
timid-looking  juror.  The  question  being  repeated, 
he  said,  after  a  visible  pause: 

"  I  couldn't  hang  a  man." 

"  Challenge  for  cause,"  said  Haggard. 

"  Sustained ;  stand  aside,"  said  the  Court. 

Another  juror  had  the  question  repeated.  He 
said  it  would  require  "  mighty  clear  evidence ;  but 
if  he's  proved  guilty,  I  could  do  it."  Henderson 
made  a  note  of  this.  Finally  after  more  question 
ing  and  the  excusing  of  one  and  examination  of  an 
other  juror,  Haggard  and  the  County  Attorney  con 
ferred  with  the  murdered  man's  widow,  and  Hag 
gard  said  in  firm  voice: 

"  The  Commonwealth  accepts  the  jury." 


8o  NISI  PRIUS 

By  the  Court :  "  What  do  you  say  for  the  de 
fense?" 

"  We  desire  time  to  confer,  your  Honor,"  said 
Brownlow,  whereupon  Brownlow,  Henderson,  Mrs. 
Dudley  and,  the  Court  consenting,  Dudley  accom 
panied  by  the  jailer  filed  out  of  the  court-room  and 
repaired  to  the  County  Clerk's  office,  which  was  lo 
cated  in  another  building  on  the  court-house  square. 
When  the  party  reached  their  room  of  consultation 
it  was  agreed  that  Brownlow,  Dudley,  and  Mrs. 
Dudley  should  remain  there  and  look  closely  over 
the  jury  list,  while  Henderson  should  hasten  to 
Jim  Hanna  and  consult  him. 

"  He  knows  more,"  said  Henderson,  "  about  the 
private  lives  of  these  men  than  all  the  lawyers  in 
Greenwood  combined,"  and  he  hastened  out  in 
quest  of  Hanna.  He  found  him  drawing  a  bucket 
of  water  from  the  well  in  the  rear  of  his  hotel  and, 
beckoning  him  to  a  room,  the  two  at  once  repaired 
thereto. 

"Want  a  little  drink?"  said  Jim. 

"  Drink !  Hell,  no,  man,  not  now !  I  want  to 
go  over  this  jury  list.  The  Commonwealth  has 
accepted  this  jury" — showing  the  list — "in  the 
Dudley  case,  and  some  of  them  have  got  me 
stumped." 

"  Awful  lot  of  hanging  fellows  on  there,  Tom," 
gravely  said  Old  Jim. 

"  Oh,  Jim,  cut  out  your  jokes.  This  is  no  time 
for  nonsense.  I  want  you  to  tell  me  all  you  know 
about  these  fellows.  I'll  begin  at  the  top.  How 
about  Squire  Henry  ?  " 


NISI  PRIUS  81 

"  Don't  take  him,"  asserted  Jim. 

"Why?"  asked  the  lawyer. 

"  He  was  a  justice  of  the  peace  for  twelve  years," 
replied  Jim,  "  and  they  always  develop  into  the 
strongest  prosecutors.  Every  man  arrested  is  al 
ways  guilty  with  them.  Scratch  him." 

"Well,  how  about  Henry  Rhoads?" 

"  Well,  Henry  is  a  good  sort  of  a  fellow.  Hasn't 
got  much  strength,  apt  to  go  with  the  majority  of 
the  jury.  I  don't  believe  he  would  ever  sign  a 
death  verdict.  I'd  take  him." 

"There's  Joe  Walker,"  continued  Henderson; 
"  he's  a  former  client  of  mine,  and  we  are  good 
friends." 

"  Is  he  the  Walker  that  lives  down  here  beyond 
old  man  Harbison's  on  the  Madisonville  road? 
Yes?  Well,  don't  take  him.  He  had  an  older 
brother  killed  in  a  brawl  twenty  years  ago,  and  he 
spent  a  small  fortune  trying  to  convict  his  slayer, 
but  never  succeeded.  He  would  likely  want  to  con 
vict." 

"  Well,  what  do  you  say  to  Tom  Spruce?  "  asked 
Henderson. 

"Did  Haggard  accept  that  fellow?"  asked  Old 
Jim.  "  You  don't  tell  me !  You  take  him  quick. 
He  had  a  row  with  Jack  Thomas  a  few  years  ago, 
something  like  the  fuss  Dudley  had  with  him.  It 
was  about  a  division  fence,  and  they  quarreled  over 
it  for  years.  Take  him?  I  should  say  so." 

"  Bob  Gaines  ?  "  inquired  the  lawyer. 

Hanna  pondered  briefly  and  said  slowly: 

"  I'd  accept  him.     He  was  arrested  once  and 


82  NISI  PRIUS 

tried  and  acquitted.  It  was  a  small  offense,  and 
the  evidence  against  him  was  nearly  all  circum 
stantial.  They  will  have  to  cite  him  with  their 
circumstantial  evidence." 

"  J.  H.  Howley,  Mrs.  Dudley  knows  him  well, 
and  we  are  going  to  accept  him.  W.  T.  Baxter  — 
what  about  him  ?  "  asked  Henderson. 

"  Well,  he's  a  negative  quantity  himself,  but  he's 
a  cousin  of  Spruce,  and  will  do  whatever  Spruce 
does.  Take  him." 

"  Ed  Oats  looks  like  a  level-headed  fellow  to 
me  ?  "  inquired  Henderson. 

"  Take  him.  Haggard  has  forgotten  it,  but  he 
had  a  son  in  trouble  here  a  few  years  back,  and 
Haggard  prosecuted  him  like  the  devil.  Ed 
couldn't  agree  with  any  argument  of  Haggard's, 
ever." 

"  I  know,"  said  Henderson,  "  we  don't  want 
George  Garvin.  He  is  too  thick  with  the  Thomas 
family.  The  next  is  I.  D.  Burgher  —  what  of 
him?" 

"  I  hardly  know  about  Burgher,"  said  Jim. 
"  Let's  see.  I.  D.  Burgher.  He's  a  great  Baptist, 
and  all  of  Dudley's  folks  are  Baptists.  He's  a 
clean  man,  a  kind-hearted  sort  of  fellow.  I  believe 
I'd  take  him." 

"  What  about  Buck  Sawyer  ?  I  don't  even  know 
him,"  asked  Henderson. 

"  Sawyer,"  said  Hanna,  "  hasn't  lived  in  this 
country  long.  He  came  from  Logan  about  six 
years  ago.  He  has  a  young  wife  and  two  tow- 
headed  boys  just  about  like  Dudley's." 


NISI  PRIUS  83 

"  I  noticed  when  he  was  questioned,"  said  Hen 
derson,  "he  begged  the  judge  to  excuse  him;  that 
struck  me.  I  think  we  will  just  accept  you,  Mr. 
Sawyer.  Now  here's  the  problem  —  Captain 
Vance.  What  do  you  say  about  him,  Jim?  Re 
member,  he  is  a  strong-willed  man." 

"  Now  there  is  a  problem,"  essayed  Old  Jim,  as 
he  knit  his  brow.  "  One  thing  is  sure.  He'll  con 
trol  that  jury.  If  he's  for  you,  you  are  in  the 
clear;  but  if  he  is  against  you,  it's  hell  to  pay.  I 
remember  once  he  was  on  a  jury  here  in  a  dam 
age  suit.  When  they  went  out  they  stood  eleven 
to  one  against  him,  but  in  three  hours  they  filed  in 
with  a  unanimous  verdict,  his  way.  Let's  see,  let's 
see,"  reflected  Hanna.  "  His  daughter  married  a 
Weir;  there's  no  connection  there.  One  of  his 
boys  went  off  to  Texas,  one  married  a  Gordon,  and 
had  some  kind  of  trouble  —  divorce  maybe.  The 
old  Captain  had  a  terrible  suit  here  with  the  Green 
wood  National  Bank.  My,  he  was  bitter!  Oh, 
yes,  Jackson's  brother-in-law  was  a  director  in  that 
bank,  and  I've  heard  that  before  the  War  the  Cap 
tain  had  some  kind  of  trouble  with  a  woman.  I 
imagine  that  evidence  was  mostly  circumstantial. 
But,  you  know,  he  was  foreman  of  that  jury  that 
gave  Bud  Henson  the  limit.  That  was  a  strong 
case  of  guilt,  though.  Let  me  see.  Tom,  damned 
if  I  wouldn't  take  him,  if  it  was  me,"  concluded  this 
master  of  this  rare  and  devious  art  of  selecting  a 
jury. 

"  Thanks,  Jim,  that's  the  twelfth  man,"  and  Hen 
derson  hurried  to  the  Clerk's  office.  On  reaching 


84  NISI  PRIUS 

there  Brownlow  remarked  that  the  Court  had  sent 
for  them.  A  hurried  comparison  of  conclusions 
was  had,  and  the  party  filed  into  court. 

"  The  defense  will  excuse  T.  J.  Henry,  Joe 
Walker,  and  George  Garvin,"  said  Henderson,  ad 
dressing  the  Court. 

The  County  Attorney  shot  a  pleased  smile  at 
Haggard,  who  sat  impenetrable.  Brownlow  caught 
the  smile.  It  made  him  nervous.  He  said  to  Hen 
derson, 

"  Whom  could  we  have  left  on  that  jury  that 
tickles  the  other  side  so  much  ?  " 

"  Don't  know,"  muttered  Henderson ;  "  one 
thing  certain,  we  know  more  about  that  panel  than 
they  do." 

Three  new  jurymen  were  called  and  examined. 
The  State  excused  one.  Another  was  called  and 
disqualified  himself.  He  had  an  opinion.  The 
next  qualified  and,  after  consulting,  the  State  again 
accepted  the  jury. 

The  defendant's  counsel  held  a  whispered  con 
ference.  They  were  fully  satisfied  with  two  of 
the  three  last  called,  but  were  perplexed  as  to  Ja 
son  Barrow,  a  sphinxlike  fellow  who  betrayed 
nothing  in  his  countenance.  Jim  Hanna  had  care 
lessly  wandered  into  the  court-room,  which  fact 
was  unknown  to  Henderson  and  Brownlow. 
Brownlow  was  inclined  to  accept  Barrow,  while 
Henderson  was  tortured  by  grave  misgivings. 
While  thus  in  doubt  Henderson  felt  a  nudge,  and 
on  turning  was  handed  a  small  bit  of  the  margin 
of  a  newspaper,  on  which  was  scrawled  these 


NISI  PRIUS  85 

words:  "  Scratch  Barrow;  he'll  ruin  you."  It  was 
unsigned.  Henderson  clandestinely  looked  about 
him  and  surveyed  the  audience.  He  discovered 
Hanna,  who  gave  him  a  significant  nod.  Then 
followed  another  conference  with  Brownlow,  after 
which  Henderson  said: 

"  We  excuse  Mr.  Barrow." 

"  Call  another,  Mr.  Clerk,"  ordered  the  Court. 

"  That  exhausts  the  regular  panel,  your  Honor," 
responded  the  clerk. 

"  Mr.  Sheriff,"  said  Judge  Lowden,  "  summon  a 
by-stander." 

The  sheriff  gazed  scrutinizingly  over  the  throng 
of  masculine  faces  present,  hesitated,  and  called 
out: 

"  Come  around,  Mr.  Agnew."  That  gentleman, 
who  was  seated  in  the  rear  of  the  room,  arose  and, 
with  screeching  new  brogans,  that  screeched  and 
screeched  and  screeched  with  his  every  step,  came 
forward.  He  was  sworn,  qualified,  and  quickly 
accepted  by  the  Commonwealth. 

"  Judge,"  spoke  up  Henderson,  "  I  hope  your 
Honor  will  pardon  me,  but  I'm  called  to  the  tele 
phone  for  a  moment." 

O  Henderson,  in  this  thou  art  a  liar,  but  a  kind 
Providence  will  doubtless  hold  thee  guiltless,  so 
great  and  terrible  is  the  battle  thou  art  engaged  in ! 

Henderson  being  told  by  the  Court  to  return  as 
quickly  as  possible,  hurriedly  left  the  court-room, 
sending  a  knowing  look  to  Old  Jim  Hanna  as  he 
passed  out.  Hanna,  with  excellent  sang  froid, 
liesurely  walked  out  of  the  court-room,  the  most 


86  NISI  PRIUS 

indifferent  mortal  conceivable.  At  the  door  Hen 
derson  nervously  seized  Old  Jim's  coat-sleeve, 
saying : 

"  What  on  earth  do  you  know  about  this  Ag- 
new?  Dudley  doesn't  like  his  looks." 

"  Nothin',''  vouchsafed  Hanna. 

"  I  don't  propose  to  accept  a  juror,"  replied  Hen 
derson,  "  when  I'm  absolutely  in  the  dark." 

"  Bob  Jenkins  over  there  came  from  Agnew's 
neighborhood  —  suppose  we  go  to  the  store  and 
ask  Bob  ?  "  suggested  Hanna. 

The  two  men  hurried  across  the  street  and 
found,  on  inquiry,  that  Jenkins  was  in  the  court 
room  attending  the  trial.  He  was  hurriedly  sent 
for  and  at  once  joined  them. 

"  Bob,"  said  Hanna,  "  that  fellow  Duke  Agnew, 
who  has  been  called  as  a  juryman  over  there, 
didn't  you  come  from  his  neighborhood  ?  " 

To  which  Jenkins  replied  in  the  affirmative. 

"  Well,"  said  Hanna,  "  would  you  take  him  as  a 
juryman  if  you  were  in  Tom  Henderson's  place?  " 

Jenkins  hesitated  and  seemed  embarrassed.  He 
then  suddenly  said: 

"  Come  back  here,  Jim,"  and  the  two  men  drew 
apart  from  Henderson,  engaging  in  a  whispered 
colloquy.  Presently  Hanna  rejoined  Henderson, 
took  him  by  the  arm,  silent  the  while,  and  the  two 
men  left  the  store.  When  they  had  gotten  well 
out  of  Jenkins'  hearing  Hanna  said : 

"  He  made  me  swear  I'd  never  tell  you,  but  that 
damned  scoundrel  Agnew  stayed  all  night  with 
Jenkins  last  night  and  told  him  confidentially  that 


NISI  PRIUS  87 

Dudley  was  as  guilty  as  hell.  Now  what  do  you 
think  of  that?" 

"  What  a  close  call !  "  was  all  the  staggered  ad 
vocate  could  say. 

When  Henderson  returned  to  the  court-room  and 
had  resumed  his  seat  Brownlow  arose  and  said  the 
defendant  would  excuse  Mr.  Agnew. 

"  Summon  another  by-stander,"  ordered  the 
Court. 

The  sheriff  duplicated  his  former  "  gaze  and 
think  "  scene,  and  summoned  Mr.  Buskill.  Buskill 
was  opposed  to  capital  punishment,  and  was  ex 
cused.  Mr.  Mansard  was  summoned.  The  State 
challenged  for  cause.  The  defense  objected.  His 
qualifications  were  argued.  The  Court  finally  sus 
tained  the  prosecution,  and  Mr.  Mansard  was  ex 
cused. 

Mr.  Turley  was  called.  Hanna  was  now  sit 
ting  near  Henderson.  While  Turley  was  being 
sworn,  Hanna  leaned  toward  Henderson  and  whis 
pered,  "  Take  him  without  fail,  I  can't  explain 
now,  but  you  must  have  him  on  that  jury.  I'm 
afraid,  though,"  he  added,  "  Haggard  will  excuse 
him." 

"  I  will  try  to  dust  Haggard's  eyes,"  said  Hen 
derson. 

Haggard  began  to  interrogate  Mr.  Turley.  Al 
most  immediately  Henderson  broke  in,  and,  inter 
rupting  Haggard,  said  to  the  venireman: 

"  I  did  not  understand  your  answer  to  Mr.  Hag 
gard's  last  question.  What  was  it  ?  " 

Turley  repeated  his  answer,  whereupon  Hender- 


88  NISI  PRIUS 

son  fairly  leaped  on  him,  making,  apparently,  a 
desperate  effort  to  disqualify  him.  He  questioned 
and  cross-questioned  him,  but  elicited  no  legal  rea 
son  why  he  should  not  sit  as  a  juror.  Then  to 
complete  the  feint  Henderson,  with  grave  mien, 
said: 

"  We  challenge  Mr.  Turley  for  cause." 

"  Overruled,"  responded  the  Court.  "  What  do 
you  say  to  the  jury,  Mr.  Haggard?  " 

"  The  Commonwealth  accepts  the  jury,  your 
Honor,"  replied  the  prosecuting  attorney. 

"  And  so  do  we,  your  Honor,"  quickly  retorted 
Henderson. 

Haggard  saw  in  a  flash  how  skillfully  the  trap 
had  been  set,  and  how  speedily  and  unconsciously 
he  had  fallen  into  it.  He  had  accepted  Turley  be 
cause  Henderson's  questions  and  challenge  led  to 
the  impression  that  the  defense  did  not  want  him 
under  any  circumstances.  Lowden  saw  it  all.  He 
could  not  but  admire  the  consummate  skill  Hender 
son  had  employed  in  trapping  the  able  prosecutor. 
Haggard  bit  his  fine,  thin,  tightly  compressed  lips, 
and  perhaps  inwardly  and  bitterly  resolved  to  have 
his  vengeance  before  the  end  of  the  trial. 

O  Haggard,  do  not  chide  yourself  for  this  er 
ror!  You  are  a  great  criminal  lawyer,  but  in  this 
master  science  in  which  you  are  engaged  the  great 
and  the  small,  the  giants  and  the  pigmies,  all  must 
take  sword  thrusts.  Sometimes  they  are  pinioned 
fatally,  again  they  recover  and  draw.  Deity  has 
accomplished  many  things,  but  as  yet  no  brain  has 
been  constructed,  in  this  or  any  other  age  or  clime, 


NISI  PRIUS  89 

that  surely  could  call  itself  master  of  this  vast, 
illimitable,  boundless  thing  —  the  law. 

"  Swear  the  jury  to  try  the  issue,"  were  the 
words  from  the  bench  that  broke  in  on  Haggard's 
reverie,  and  Hiram  Dudley  was  in  jeopardy. 

"  Oyez !  oyez !  court  now  stands  adjourned  until 
one  o'clock,"  followed  after  the  jury  had  been  ad 
monished  and  put  in  the  custody  of  a  deputy  sheriff. 


CHAPTER  IX 

AT  one  o'clock  actors  and  spectators  in  this  drama 
were  all  in  their  places.  Following  the  usual  brief 
formality  of  opening  court,  the  roll  of  the  jury  was 
called.  Henderson  then  asked  for  the  rule  —  that 
is,  the  separation  and  exclusion  of  the  witnesses 
from  the  court-room.  This  motion,  as  a  matter  of 
course,  was  sustained.  All  of  the  witnesses  were 
required  to  stand,  were  duly  sworn,  admonished, 
and  directed  to  keep  without  the  hearing  of  the 
court,  but  to  remain  in  calling  distance.  They 
sourly  and  gingerly  left  the  court-house,  much  to 
the  gratification  of  certain  spectators,  who  now  had 
comfortable  seats. 

"  Read  the  indictment,  Mr.  Haggard,"  said  the 
Court. 

Haggard  arose,  holding  a  single  piece  of  paper 
in  his  hand. 

"  May  it  please  the  Court  and  you  gentlemen  of 
the  jury,  I  will  read  this  indictment."  Then  fol 
lowed  the  formal  charge  couched  in  simple  lan 
guage.  Mrs.  Dudley  caught  only  certain  words, 
such  as  "  offense  of  murder  "  and  "  willfully,  un 
lawfully,  feloniously  and  with  malice  afore 
thought,"  "  shoot  and  kill  one  Jackson  Thomas," 
"  leaded  ball  or  balls,"  "  a  year  and  a  day," 
"  against  the  peace  and  dignity  of  the  Common 
wealth  of  Kentucky." 

"To   all  of   which,"   Haggard   continued,   "the 

defendant  enters  a  plea  of " 

90 


NISI  PRIUS  91 

"  Not  guilty,"  said  Henderson. 

"  And,"  continued  Haggard,  looking  at  Hender 
son,  who  nodded  his  head  affirmatively,  "  waives 
formal  arraignment.  Gentlemen,  it  is  sometimes 
my  custom  to  make  an  opening  statement  on  the 
beginning  of  a  trial  such  as  this.  However,  I  shall 
not  do  so  on  this  occasion.  I  shall  only  say  that 
from  the  evidence  you  will  hear  you  will  see  laid 
bare  a  fiendish,  foul,  cold-blooded,  and  cruel  mur 
der.  The  defendant,  in  the  night  time,  like  an 
assassin,  shot  and  killed  Jackson  Thomas,  a  citizen 
of  your  county.  He  was  killed  in  the  very  prime 
of  life,  in  the  very  bosom  of  his  family.  The  poor 
fellow  was  beneath  his  own  vine  and  fig  tree,  joy 
ous  with  his  wife  and  children  about  him,  and  was 
brutally  murdered,  without  a  chance  to  defend  him 
self  —  shot  down  like  a  dog,  his  very  bowels  being 
scattered  over  his  hearthstone.  The  great  State  of 
Kentucky  demands  at  your  hands  that  this  cow 
ardly  assassination  be  revenged.  You  will  hear 
the  evidence,  gentlemen,  and  make  up  your  verdict 
accordingly." 

The  Court  inquiringly  looked  at  Henderson,  who 
arose  and  said : 

"  Your  Honor,  we  do  not  know  that  we  care  to 
consume  any  time  in  making  an  opening  statement, 
but  should  we  conclude  to  do  so,  we  will  reserve 
our  statement  until  the  conclusion  of  the  Common 
wealth's  evidence." 

"  Call  a  witness,"  ordered  the  Court. 

"  Call  Mrs.  Mary  Thomas,"  said  Haggard. 

Mrs.  Thomas  was  called.     She  appeared  clad  in 


92  NISI  PRIUS 

the  deepest  black,  threw  her  veil  aside,  held  up 
her  right  hand,  was  sworn  and  took  the  witness 
stand. 

Her  voice  trembled  perceptibly,  but  soon  assumed 
its  normal  tone.  Omitting  preliminaries,  she 
stated  that  she  was  the  widow  of  the  late  Jackson 
Thomas;  she  and  her  husband  and  their  six  chil 
dren  had  resided  on  a  farm  about  eight  miles  out 
from  Greenwood  on  the  Russellville  road.  Hiram 
Dudley  lived  on  an  adjoining  farm.  Her  husband 
was  shot  and  killed  at  about  eleven  o'clock  at  night 
at  his  door  on  the  I4th  of  the  preceding  August. 
She  was  at  the  house  at  the  time. 

"  Now,  Mrs.  Thomas,  I  want  you  to  tell  the  jury 
in  your  own  way  just  what  transpired  that  night," 
said  Haggard. 

"  Well,  we  had  supper  as  usual,  and  Jack  — 
that's  my  husband  —  he  went  down  into  the  lower 
field  to  turn  the  cattle  into  the  pasture  —  you 
know  we  used  one  pasture  in  the  day  time  and  an 
other  at  night.  Well,  the  pasture  we  used  to  use 
had  been  plowed  up  and " 

By  Mr.  Haggard,  in  a  kind  voice: 

"  Never  mind,  Mrs.  Thomas,  about  those  things. 
Just  relate  the  things  that  occurred  at  the  time  of 
the  assassination  of  your  husband." 

"  Oh,  excuse  me,"  broke  in  Mrs.  Thomas ;  "  this 
is  my  first  experience  in  court.  I'll  do  my  best, 
Mr.  Haggard.  Well,  after  my  husband  returned 
from  the  pasture  we  were  sitting  on  the  porch 
watching  the  moon  rise  and  he  said  to  me, 
'  Mary,' " 


NISI  PRIUS  93 

"  We  object,"  thundered  Brownlow  and  Hen 
derson  in  a  duet. 

"  Yes,  don't  tell  anything  your  husband  said  to 
you  on  the  porch,"  suggested  Haggard.  "  Just 
tell  what  occurred  at  the  time  of  the  shooting." 

"  Well,"  said  the  witness  wearily,  "  Jack  and  I 
sat  there  and  talked  until  about  nine  o'clock,  and 
then  we  went  to  bed.  The  two  older  children  were 
staying  all  night  with  Henry  Storms'  children  and 
the  others  were  in  bed.  Our  room  is  upstairs 
over  the  downstairs  bedroom.  We  used  to  sleep 
downstairs,  but  Jack  and  I  talked  about  it  and  he 
said " 

"  We  object,"  came  the  duet  again  from  the  de 
fendant's  table. 

"  Just  confine  yourself,  madam,  to  the  occasion 
of  the  shooting,"  gently  interposed  Judge  Lowden. 

"  Thank  you,  Judge,  I'm  trying  my  best  to." 

"  Well,  proceed,"  requested  Haggard. 

"  What  was  the  question  you  asked  ?  "  inquired 
the  uninitiated  witness. 

"  Just  relate  the  facts  about  the  shooting,"  said 
Haggard. 

"  Well,  we  went  to  bed  and  were,  I  suppose, 
asleep  by  half  after  nine.  At  ten  minutes  to  eleven 
o'clock  —  I  know,  because  I  looked  at  the  clock  as 
soon  as  Jack  struck  a  light  —  at  ten  minutes  to 
eleven  o'clock  we  were  both  awakened  by  loud  ham 
mering  or  knocking  on  the  front  door  downstairs. 
We  aroused  at  the  same  time.  We  both  sat  up  in 
bed  —  that's  an  unusual  thing  in  the  country.  The 
knocking  continued.  Jack  got  out  of  bed,  pulled 


94  NISI  PRIUS 

on  his  trousers,  struck  a  match,  looked  at  the  clock, 
lit  a  candle  and  said  he  would  go  down  and  see 
who  it  was.  As  he  went  out  the  door  and  got  to 
the  first  landing  on  the  steps  the  candle  flickered 
and  went  out.  He  did  not  relight  it  —  left  it  on 
the  window-sill,  for  I  found  it  there  the  next  day. 
He  went  on  downstairs  and  I  went  to  my  front 
window  out  of  curiosity,  to  see  what  I  could  see. 
The  moon  was  full,  and  it  was  as  bright  as  day. 
I  could  not  see  anywhere  near  the  front  door,  as 
the  roof  of  the  front  porch  cut  off  my  view. 

"  I  heard  my  husband  unlatch  the  front  door. 
He  then  said  through  the  screen  door,  '  Who  is 
it?'  A  voice  answered,  'A  quick  delivery  letter, 
Mr.  Thomas.'  I  then  heard  him  unlatch  the  screen 
door  and  heard  it  open  —  it  always  screeched  on 

its  hinges.  Then  I  heard Oh,  I  can't  tell  it ! 

I  can  hear  it  all  in  my  ears  now  and "  Here 

the  witness  broke  down  and  sobbed  hysterically. 

"  Calm  yourself,  Mrs.  Thomas,  and  do  not 
hurry,"  said  the  Court.  "  Mr.  Sheriff,  hand  Mrs. 
Thomas  some  water." 

She  drank  the  water,  dried  her  eyes,  and  seemed 
stronger  than  before  the  break-down.  She  re 
sumed  : 

"  When  the  screen  door  opened  I  heard  a  terri 
ble  report  —  like  both  barrels  of  a  shotgun  fired  at 
once.  I  was  stunned  and  almost  froze  where  I 
stood.  An  instant  after  the  shot  I  saw  out  the 
window  a  man  running  rapidly  across  the  yard, 
diagonally.  He  leaped  the  fence  with  one  bound, 
mounted  a  horse  standing  there  and  rushed  away. 


NISI  PRIUS  95 

He  had  something  in  his  hand  that  I  took  to  be  a 
shotgun.  At  the  same  time  that  he  jumped  the 
fence  I  saw  a  white  dog  leap  the  fence  and  run  off 
down  the  road, —  south, —  the  direction  the  man 
had  taken.  All  this  I  saw  in  a  twinkling." 

"  Now,  did  you  hear  any  voices  downstairs," 
asked  Haggard,  "  either  just  before,  at  the  time  of, 
or  immediately  following  the  report  of  the  gun?" 

"  Yes,  sir,  I  did.  I  distinctly  heard  some  one 
say,  '  Nine  hundred  dollars.'  I  did  not  recognize 
this  voice.  Then  I  heard  my  husband's!  voice.  He 
used  Hiram  Dudley's  name.  Everybody  calls 
Mr.  Dudley  '  Hi '  for  short.  I  heard  Jack  say, 
'  You  are  Hi  — — '  He  never  finished  the  sen 
tence.  The  gun  fired  at  that  instant." 

Henderson  was  objecting  to  all  these  state 
ments,  but  the  Court  held  they  were  a  part  of  the 
res  gestae  and  competent. 

"  Well,"  inquired  Haggard,  oblivious  to  the  ob 
jections,  "did  you  hear  anything  further?" 

"  Yes,  sir,"  continued  the  witness.  "  As  the 
man  dashed  away  on  his  horse  I  rushed  to  my  hus 
band.  As  I  went  down  the  stairs  I  heard  him  use 
these  words  — '  Woman  —  Leavenworth  —  extor 
tion.'  I  got  to  his  side  then.  He  never  spoke 
again.  The  children  were  up  and  rushed  out  for 
the  doctor.  He  groaned  twice  and  died  with  his 
head  in  my  lap." 

Here  the  witness  again  broke  down.  She  again 
restored  herself  after  a  brief  pause. 

"  How  long  have  you  known  the  defendant,  Hi 
Dudley?"  inquired  Haggard. 


96  NISI  PRIUS 

"  Ten  or  twelve  years,"  answered  the  witness. 

"By  what  name  did  your  husband  call  him?" 

"  Always  called  him  Hi,"  she  replied ;  "  that  is, 
he  used  to  when  they  were  on  speaking  terms. 
They  haven't  spoken,  though,  for  three  or  four 
years." 

"  Why  was  that  ?  "  interrogated  counsel. 

"  They  had  a  misunderstanding  about  some  of 
Mr.  Dudley's  hogs  getting  in  our  corn.  We  took 
the  hogs  and  held  them  until  the  damages  and  feed 
bill  were  paid.  Mr.  Dudley  and  Jack  came  near 
to  blows  in  our  lot  one  evening,  and,  with  the  help 
of  Tom  Ennis,  I  separated  them.  They  haven't 
been  on  good  terms  since." 

"  You  say  you  saw  the  man  run  across  the  yard, 
leap  the  fence,  and  ride  away?  Compared  to  the 
defendant's  build,  what  size  man  was  that  ?  " 

"  He  was  just  of  such  a  build  as  Mr.  Dudley." 

"  You  say  you  saw  a  white  dog  leap  the  fence 
at  the  same  time.  State  whether  or  not  at  that 
time  Dudley  owned  a  white  setter  dog?" 

"  Yes,  sir,  he  did  —  that  followed  him  every 
where." 

"  How  did  the  size  of  that  dog  you  say  jumped 
the  fence  compare  with  the  size  of  Dudley's  dog?  " 

"  Just  about  the  same  size." 

"  With  reference  to  Dudley's  house, —  which 
way  did  the  man  go  after  he  mounted  ?  " 

"  He  went  in  the  direction  of  Mr.  Dudley's 
house." 

"Which  direction  did  the  dog  go?" 

"  The  same  the  man  took." 


NISI  PRIUS  97 

"  How  long  did  your  husband  live  after  you 
reached  him  ?  " 

"  I  should  say  from  two  to  three  minutes." 

"  Immediately  after  he  died,  did  you  make  a 
light  and  examine  the  hall  ?  " 

"  Yes,  sir  —  as  best  I  could  in  the  condition  I 
was  in." 

"If  you  discovered  or  found  anything,  state 
what  it  was  ?  " 

"  I  found  this  gun  wad.  That  gun  was  a  muz 
zle-loader.  I  found  this  paper  wad  in  the  burnt 
clothing  of  my  husband,  where  the  wound  was  in 
flicted." 

"  Unwrap  that  paper  and  read  anything  that  may 
be  on  it?" 

"  It  is  badly  singed  and  powder  burnt.  All  I 
can  decipher  are  the  words  in  large  black  letters, — 
'  Farmer's  Gaze ' ': 

"  Is  there  a  publication  that  circulates  about  here 
called  The  Farmer's  Gazette?" 

"  There  is." 

"  Do  you  know,  of  your  own  personal  knowl 
edge,  whether  at  the  time  of  this  murder  Hiram 
Dudley  was  a  subscriber  to  this  journal?" 

Henderson  turned  visibly  pale  at  the  question. 

"I  do  not  —  of  my  own  knowledge,"  replied 
the  witness. 

"Did  you  find  anything  else  there?"  pursued 
the  relentless  prosecutor. 

"  Yes,  on  the  porch,  just  in  front  of  the  door,  I 
found  this." 

Here  the  witness  exhibited  a  white  handkerchief 


98  NISI  PRIUS 

with  a  thin  stain  of  blood,  not  more  than  a  half 
inch  in  width,  but  extending  entirely  across  the 
handkerchief. 

"  Do  you,  of  your  own  knowledge,  know  whether 
the  morning  of  the  day  this  killing  occurred  the 
defendant  Dudley  had  cut  his  right  forefinger  and 
had  tied  it  up  with  his  handkerchief  ?  " 

"  I  do  not  —  of  my  own  knowledge." 

"  Were  you  awake  the  remainder  of  that  night 
after  your  husband  was  killed?" 

"  I  was." 

"  The  next  day,  did  you  see  any  tracks  in  the 
yard  in  the  course  taken  by  the  murderer?  " 

"  Yes,  sir.  The  yard  was  in  grass  and  the 
ground  was  hard  except  on  that  side  of  the  yard. 
I  had  been  preparing  to  replant  some  flowers  in 
an  old  bed  over  there  and  there  was  soft  earth 
running  alongside  the  fence  for  about  twenty  feet. 
It  was  about  fifteen  feet  wide.  I  saw  four  or  five 
tracks  there  at  daylight  the  next  day." 

"  Did  you  the  next  day  see  any  shoes  fitted  to 
those  tracks  ?  " 

"  Yes,  sir,  and  they  fit  exactly." 

"  We  object,  your  Honor,"  snapped  Henderson. 
"  They  have  not  shown  the  absence  of  opportunity 
for  forty  people  to  make  tracks  in  that  yard  be 
tween  10:50  p.  M.  and  daylight." 

"  If  the  .Court  please,  I  propose  to  show  that  by 
other  proof.  I  can  introduce  but  one  witness  at 
a  time,"  replied  Haggard. 

"  On  that  idea,  you  may  proceed,"  said  Judge 
Lowden. 


NISI  PRIUS  99 

"  Do  you  know  whether  those  shoes  were  Hiram 
Dudley's?" 

"  The  sheriff  said " 

"  Never  mind  what  anybody  said,  Mrs.  Thomas," 
interrupted  Henderson. 

"  I  do  not  know  myself,"  she  added. 

"  Mrs.  Thomas,"  continued  Haggard,  "  did  any 
physician  reach  your  house  that  night?  " 

"  Yes ;  Dr.  Dayton  got  there  an  hour  after  my 
husband  died.  He  examined  him  and  picked  a 
dozen  shot  out  of  what  he  called  the  surface 
wounds." 

"  Have  you  those  shot  and  did  you  see  the  doc 
tor  get  them  out  ?  " 

"  I  did.     Here  they  are." 

And  the  witness  opened  a  small  paper  package 
and  held  the  shot  in  the  palm  of  her  hand. 

"  Do  you  know  whether  they  are  squirrel  shot?  " 

"  I'm  not  a  hunter,  but  they  are  thq  size  my  boys 
always  use  in  squirrel  hunting." 

"  Do  you  know  whether  Hiram  Dudley  is  a 
squirrel  hunter?  " 

"  Yes,  sir.  He  is  regarded  as  a  wonderfully  fine 
shot,  and  always  makes  the  biggest  bag  squirrel 
hunting." 

Haggard  paused  and  reflected.  The  County  At 
torney  whispered  something  in  his  ear.  He  re 
sumed. 

"  Was  this  killing  in  this,  Mecklenberg,  county?  " 

"Yes,  sir." 

"  Is  this  defendant  here  the  Hiram  Dudley  you 
have  been  talking  about?" 


ioo  NISI  PRIUS 

"Yes,  sir." 

Then  followed  a  brief  consultation  with  the 
County  Attorney.  Haggard  stroked  his  chin  med- 
itatingly,  looked  at  the  ceiling  and  said  quietly : 

"  I  believe  you  may  take  the  witness,  gentle 
men." 


CHAPTER  X 

HENDERSON  began  the  most  difficult,  dangerous, 
and  delicate  task  ever  allotted  to  a  lawyer  —  the 
cross-examination  of  the  heart-broken  widow  of 
the  man  your  client  is  accused  of  slaying.  Her  evi 
dence  cannot  be  accepted  as  altogether  true  merely 
for  delicacy's  sake.  Courtesy  to  the  gentler  sex 
and  a  general  surrender  to  them  in  all  departments 
of  life  is  altogether  chivalric  and  gallant,  but  when 
the  man  sitting  behind  you  is  staring  at  the  gal 
lows  the  woman  in  black  is  not  a  tear-stained,  ten 
der,  gentle  widow,  but  she  becomes  a  witness,  and 
witness  only.  But  beware  lest  you  excite  sympa 
thy  for  her  should  you  press  too  hard.  So,  be 
tween  that  danger  and  the  other  absolute  necessity, 
you  have  no  alternative.  The  bright  and  glittering 
sword  of  Damocles  hangs  over  your  good,  clear 
head,  Defender  Henderson.  Others  greater  than 
you,  so  circumstanced,  have  snapped  the  thin  bar 
rier  and  gone  to  their  professional  death. 

Tom  Henderson's  distinct  characteristic  in  the 
cross-examination  of  a  witness  was  brushing  aside 
all  redundant  matter  and  plunging  heels  over  head 
into  the  very  gist  of  the  evidence.  He  knew  no 
preliminaries.  Thus  he  began  his  task. 

"  You  say  you  saw  a  dog  jump  the  fence?  Are 
you  sure  of  this  ?  " 

"Yes,   sir,  I  am." 

"It  was  a  moonlight  night?" 
101 


102  NISI  PRIUS 

"Yes,  sir,"      .. 

"  At  that. time  did  not  _one  pf  your  boys  own  a 
white  goat  ?  " 

"Yes,  that  is  true." 

"  Did  not  this  goat  stay  in  the  yard  ?  " 

"Yes,  sir." 

"  At  a  little  distance,  would  it  not  appear  to  be 
approximately  the  same  size  as  Mr.  Dudley's  bird 
dog?  " 

"  Yes,  it  would,  I  believe." 

"  Have  you  not  seen  it  jump  the  yard  fence 
often?" 

"  Yes,  I  have." 

"  Is!  it  not  true  that  the  goat  was  fearfully  afraid 
of  the  discharge  of  firearms?  " 

"  I  really  do  not  know." 

"  At  daylight,  the  morning  after  the  killing,  when 
you  examined  the  human  tracks,  did  you  see 
whether  the  other  tracks  were  made  by  a  goat  or 
by  a  dog?  " 

"  No,  sir,  we  did  not." 

"  If  I  understand  you,  your  husband  just  before 
the  shot  was  fired  said — 'Nine  hundred  dollars'; 
or  some  person  said  it,  you  didn't  know  who?  " 

"  Yes,  sir,  that  is  true." 

"  That  was  not  your  husband's  voice  ?  " 

"  I  do  not  know;  my  best  opinion  is  it  was  not." 

"  Do  you  know  Mr.  Dudley's  voice  ?  " 

"  I  do." 

"  Was  it  his  voice  ?  " 

"  I  cannot  say." 

"  Give  your  best  opinion." 


NISI  PRIUS  103 

"  I  do  not  know." 

"  Give  your  opinion." 

"  I  have  no  opinion." 

"  Did  it  sound  like  Dudley's  voice  ?  " 

"  I  do  not  know." 

"  When  you  heard  the  voice,  you  never  thought 
of  Dudley,  did  you?" 

"  No,  sir." 

"  Then  there  was  nothing  in  the  voice  to  remind 
you  Dudley  was  there?  " 

"  No,  sir." 

"  You  didn't  then  think  it  any  voice  you  knew, 
did  you?" 

"  No,  sir." 

"  The  voice  you  heard  had  nothing  about  it  to 
remind  you  of  Dudley,  did  it?" 

"  No,  sir." 

"  Well,  then,  it  did  not  sound  like  his  voice,  did 
it?" 

"  No,  I  don't  guess  it  did." 

"  Well,  now,  after  the  nine  hundred  dollar  ex 
pression  uttered  by  a  strange  voice,  you  say  you 

heard  Mr.  Thomas  say,  '  You  are  Hi ,'  and  no 

more  ?  " 

"  Exactly." 

"  Now,  did  your  husband  say  this  — *  You  are 
h-i-g-h/  referring  to  the  nine  hundred  dollars?  " 

"  I  don't  know  what  he  meant.  I  only  know 
what  he  said." 

"  Isn't  it  just  as  consistent  with  what  you  heard 
to  say  that  he  said  '  H-i-g-h '  as  to  say  he  said 
'H-i'?" 


104  NISI  PRIUS 

"  I  suppose  it  is."  ) 

"  After  he  was  shot,  you  heard  these  words  — 
'  Woman  —  Leavenworth  —  extortion  '  spoken  by 
Mr.  Thomas  ?  " 

"Yes,  sir." 

"  Hadn't  your  husband  lived  in  Leavenworth, 
Kansas,  before  he  and  you  were  married?" 

"  Yes,  sir,  for  only  a  few  months.  Twenty 
years  ago." 

"  Do  you  know  whether  on  the  day  before  the 
day  he  was  killed  a  stranger  called  at  your  house 
to  see  your  husband  ?  " 

"  Yes,  sir  —  a  man  came  there  to  see  Jack  the 
day  before." 

"  Is  it  not  true  that  you  and  Mr.  Thomas  were 
seated  on  your  front  porch  and  this  man  rode  up 
to  the  gate?  And  didn't  Mr.  Thomas,  as  soon  as 
he  saw  the  stranger,  leave  you  and  go  to  the  yard 
gate  and  meet  the  visitor  at  the  gate  ?  " 

"  Yes,  sir ;  but  what  has  that  to  do  with  this 
case  ?  " 

"  How  long,"  persisted  Henderson,  "  did  the 
stranger  remain  in  conversation  with  your  husband 
at  the  gate  ?  " 

"  How  long?  I  should  say  about  thirty  or  forty 
minutes." 

"  When  your  husband  returned  to  you,  did  he 
offer  any  explanation  as  to  who  his  visitor  had 
been?" 

"No,  sir,  he  did  not." 

"  Did  you  inquire  ?  " 

"  No,  sir.     Just  as  soon  as  he  got  to  the  house 


NISI  PRIUS  105 

he  said  he  had  to  hurry  out  to  the  tobacco  patch 
to  see  after  the  hands." 

"  That  is  all,  Mrs.  Thomas/'  concluded  Hender 
son  abruptly. 

"  How  far  " —  re-examined  by  Haggard  — "  is 
your  front  yard  fence  from  the  front  of  your 
house?  " 

"  Really,  I  never  measured  it.  I  suppose, 
though,  it's  something  like  fifty  to  sixty  yards." 

"  What  kind  of  walk  leads  from  the  gate  to  the 
house?" 

"  Why,  it's  a  gravel  walk,  with  some  rose  bushes 
on  each  side  of  it." 

"  You  may  stand  aside.  Call  Dr.  Dayton,  Mr. 
Sheriff,"  said  Haggard. 


CHAPTER  XI 

DR.  TOM  DAYTON,  perhaps  more  than  six  feet  in 
height,  broad  shouldered,  a  goodly  sprinkling  of 
silver  in  his  thin  hair,  took  the  stand.  He  wore 
sideburns,  and  his  bright  eye  twinkled  the  twofold 
traits  of  candor  and  good  humor.  He  took  the 
oath  with  the  air  of  a  man  familiar  with  the  pro 
ceedings,  as  indeed  he  was.  For  forty  years  or 
more  this  fine  old  country  doctor  had  baffled  the 
snows  of  winter  and  the  suns  of  summer  over  hill 
and  vale  throughout  all  sections  of  Mecklenberg 
County,  comforting,  cheering,  healing.  For  this 
he  was  paid  —  sometimes. 

Henderson  knew  that  whatsoever  the  old  doctor 
said  to  that  jury  would  be  accepted  by  them  as  ab 
solutely  true.  Therefore  the  chief  counsel  for  the 
defense  had  misgivings  such  as  only  those  who 
have  had  a  similar  experience  can  appreciate. 

"  Thomas  E.  Dayton,  practiced  forty  years, 
Mecklenberg  County,  Louisville  School  of  Medi 
cine,"  was  his  reply  to  counsel's  first  question. 

Being  requested  to  tell  all  he  knew  concerning 
the  tragedy,  he  said: 

"About  11:30  at  night  on  the  I4th  of  last 
August  I  got  word  to  go  to  Mr.  Thomas'  quick. 
I  reached  there  some  time  after  midnight.  Mr. 
Thomas  was  lying  on  his  back  in  his  front  hall. 
He  was  dead,  and  had  been  dead,  I  should  say, 
perhaps  an  hour.  He  had  been  shot  in  the  stom- 

106 


NISI  PRIUS  107 

ach  —  a  mortal  wound.  I  examined  his  body.  I 
removed  a  number  of  shot  from  the  epidermis ;  they 
were  squirrel  shot.  The  wound  was  sufficient  to, 
and  did,  produce  almost  immediate  death.  I  saw 
the  gunwad  and  the  handkerchief.  Mrs.  Thomas 
showed  them  to  me.  After  I  had  removed  the 
few  shot  I  made  an  examination  of  the  yard  and 
found  four  or  five  tracks  in  the  soft  earth,  which 
tracks  led  from  the  house  to  the  fence  in  a  diag 
onal  course.  I  at  once  gave  orders  to  keep  every 
body  off  that  ground,  and  one  of  Thomas'  boys 
stretched  a  wire  around  the  tracks  to  keep  people 
off.  Mrs.  Thomas,  in  an  hour  after  I  reached  her, 
became  hysterical  and,  being  uneasy  about  her,  I 
remained  there  the  rest  of  the  night.  The  news 
spread,  and  a  short  while  after  daylight  many  peo 
ple  called.  The  tracks  were  guarded  and  no  one 
touched  them.  That  day  I  saw  some  shoes  fitted 
to  them,  and  they  fit  precisely.  I  did  not  know 
whose  shoes  they  were." 

"  Ask  him,"  said  Haggard  to  Henderson. 

The  defendant's  attorneys  whispered  one  to  the 
other.  Brownlow  insisted  on  the  witness  being 
cross-examined.  Henderson  feared  it.  Reluc 
tantly,  however,  he  began  the  cross-examination. 

"  Is  it  not  true,  Doctor,  that  when  you  reached 
the  house  Mrs.  Thomas  was  in  such  a  state  of 
mental  distress  as  to  be  hardly  responsible  ?  " 

"No,  sir,"  firmly  came  from  the  witness;  "on 
the  contrary,  she  was  wonderfully  calm  and  self- 
possessed.  Women  are  given  to  that  in  moments 
of  great  distress.  An  hour  after  I  reached  the 


io8  NISI  PRIUS 

house,  however,  the  reaction  came  and  she  was  al 
most  demented.  At  first,  though,  she  was  thor 
oughly  at  herself  and  related  all  the  details  of  the 
tragedy  with  remarkable  coolness." 

"  Stand  aside,"  came  from  Henderson  quickly, 
and  he  was  seen  to  whisper  into  Brownlow's  ear. 

The  next  witness,  Mack  Burnley,  took  the  wit 
ness  chair.  Mr.  Burnley  was  a  neighboring 
farmer,  on  pleasant  terms  with  both  families  in 
volved  in  this  case.  His  reputation  was  that  of  an 
honest  man,  and  his  veracity  had  never  been  ques 
tioned. 

He  remembered  the  occasion  of  the  killing.  It 
was  a  brilliant  moonlight  night.  His  house  was  on 
the  road  between  the  Thomas  house  and  the  Dud 
ley  house.  While  the  Dudley  farm  joined  the 
Thomas  farm,  yet  by  the  public  road  the  houses 
were  some  two  miles  distant  from  each  other. 

"  Tell  the  jury  what  you  were  doing  that  night, 
and  what  you  saw  or  heard,  and  give  the  time  as 
near  as  you  can,"  instructed  Haggard. 

"  I  had  been  missing  a  lot  of  chickens  lately, 
and  at  first  thought  foxes  were  doing  the  work. 
Later,  I  had  reason  to  suspect  otherwise,  and  I  de 
termined  to  watch  and  catch  the  thief.  There  is 
an  old  summerhouse  in  the  corner  of  my  yard, 
very  near  the  public  road,  and  after  my  henhouse 
burned  my  wife  had  this  old  summerhouse  fixed  up 
for  a  temporary  henhouse.  We  were  still  using 
it.  Between  it  and  my  front  fence  —  about  ten 
feet  apart  they  are  —  is  a  low,  thick  cedar  tree. 
At  about  nine  o'clock  I  got  my  shotgun  and  went 


NISI  PRIUS  109 

out  and  hid  myself  under  this  tree  to  watch  for 
the  thief." 

"  How  long  did  you  stay  there?  " 

"  I  guess  until  one  or  one-thirty  in  the  night." 

"  Did  you  see  the  defendant  that  night ;  if  so, 
state  all  about  it?" 

"  I  did.  Somewhere  about  eleven  o'clock  —  I 
didn't  have  a  watch  —  I  heard  a  horse  approach 
ing  me  rapidly;  sounded  like  it  was  running  very 
fast.  Naturally,  I  kept  very  still  and  cocked  my 
gun.  Hiram  Dudley  was  riding  the  horse,  and  he 
was  going  like  the  wind.  He  shot  by  me  in  a 
second.  It  was  bright  as  day,  and  I  recognized 
him  and  his  horse;  it  was  his  sorrel  three-year-old. 
I  would  have  spoken  or  hallooed,  but  as  he  was 
passing  I  heard  a  twig  break  in 'the  cedar  thicket 
next  to  my  yard  and  I  thought  possibly  my  thief 
was  there,  so  kept  still." 

"  Take  the  witness,"  said  the  prosecutor. 

Henderson  braced  himself.  Muttering  inwardly 
the  word  "  caution,"  he  proceeded. 

"You  had  no  watch?" 

"  No,  sir." 

"  How  far  is  it  from  your  summerhouse  to 
Thomas'  front  gate  ?  " 

"  About  a  mile  —  or  three-quarters,  possibly." 

"  At  that  time  was  there  an  old  traction  engine 
on  the  side  of  the  road  between  your  place  and 
Thomas'  front  gate?" 

"  Yes,  there  was." 

"How  far  was  it  from  your  place?" 

"  I  guess  about  a  quarter." 


no  NISI  PRIUS 

"  When  Dudley  passed  you  what  was  his  man 
ner?  Did  he  say  anything?" 

"  I  did  not  hear  him  say  a  word.  He  was  rock 
ing  in  his  saddle,  peculiar-like ;  rather  reared  back." 

Now  the  next  question  in  Henderson's  mind, 
even  though  yet  unexpressed  in  words,  made  a  cold 
chill  pass  up  and  down  his  spine.  He  feared  to 
ask  it,  yet  he  felt  it  must  be  asked.  Here's  what 
he  whispered  to  Brownlow:  "  If  he  saw  it  you  can 
rest  assured  Haggard  would  have  asked  him.  The 
fact  that  Haggard  failed  to  ask  about  it,  proves 
that  he  could  not  prove  it  by  him.  I  am  willing 
to  take  the  chance  —  what  do  you  say?" 

"  It's  gambling,"  whispered  Brownlow,  "  but  all 
the  odds  are  our  way." 

"  Now,"  said  Henderson  to  the  witness  with  rare 
nonchalance,  living  an  age  the  while,  "  it  was  a 
brilliant  night  and  you  had  no  difficulty  in  recog 
nizing  Dudley  and  his  horse  ?  " 

"  None  whatever." 

Henderson  paused.  He  whispered  to  Brown- 
low  :  "  Let's  wait.  We  can  recall  him  later.  I'm 
afraid  of  it."  Then  to  Burnley:  "Stand  aside." 

"  Just  a  moment,"  said  Haggard, 

"  Was  Dudley  coming  from  the  direction  of 
Thomas'  house?" 

"  Yes,  sir." 

"  Was  he  going  toward  his  own  ?  " 

"Yes,  sir."' 

"  Judge,"  said  Henderson,  "  perhaps  the  jury 
would  prefer  hearing  the  witness  testify  than  Mr. 
Haggard.  The  questions  are  very  leading." 


NISI  PRIUS  in 

"  Yes ;  don't  lead  the  witness,  Mr.  Haggard," 
directed  the  Court. 

"  Call  John  Dudley,"  was  Haggard's  only  an 
swer. 

John  Dudley  was  the  eight-year-old  son  of  the 
defendant.  The  Judge  leaned  forward  intently. 
Henderson  had  been  prepared  for  this,  and  was  not 
the  least  abashed.  His  knowledge  of  what  was  to 
follow  perhaps  helped  in  the  matter  of  those  sleep 
less  nights  hereinbefore  referred  to.  But  at  least 
there  was  lacking  the  element  of  surprise  —  a  con 
dition  altogether  consoling  in  such  situations. 

"  Come  around,  John," —  it  was  Henderson's 
cheery  voice, — "  my  little  man,  and  talk  to  Mr.  Hag 
gard  awhile." 

Haggard  said  he  did  not  care  to  have  him  sworn, 
and  that  was  dispensed  with.  Henderson  wrote 
on  his  memorandum  of  the  trial  these  words,1 "  Jno. 
D.  testified  against  us.  Not  sworn.  Error." 

"  My  boy,"  kindly  began  Haggard,  "  how  old 
are  you  ?  " 

"  Eight." 

"  Whose  boy  are  you  ?  " 

"  Mrs.  Dudley's ;  used  to  be  papa's  and  mania's 
both,  but  papa's  been  gone  so  long  I'm  just  mama's 
now." 

"  Do  you  remember  when  they  came  and  took 
your  papa  away?  " 

"  Yes,  sir.  Mama  tells  Will  and  me  about  it 
every  night  when  we  say  our  prayers." 

Haggard  was  beginning  to  feel  ill  at  ease.  This 
manly  little  fellow  had  already  dimmed  the  eye  of 


H2  NISI  PRIUS 

every  juror  in  the  box.  It  was  too  late  to  retrace 
his  steps  now.  He  somehow  felt  like  a  drowning 
man.  He  must  needs  swim  on  and  on  until  he 
reached  the  shore;  stop  in  midstream  he  could 
not. 

"  Did  your  father  have  a  shotgun  ?  " 

"  Yes,  sir,  a  dandy,"  brightened  the  little  fellow. 
"  He  used  to  take  me  out  huntin',  and  we  had  lots 
of  fun.  The  last  time  we  went  out  —  that  was 
just  before  they  took  him  away  —  I  saw  an  old 
squirrel  settin'  on  a  limb  in  a  tree  across  the  fence, 
and  I  said  '  Hit  him,  Dad  ' ;  but  he  wouldn't  do  it. 
He  said  Mr.  Todd  didn't  like  for  nobody  to  kill  his 
squirrels,  and  it  was  Mr.  Todd's  land." 

"  Do  you  remember  when  you  went  to  bed  the 
night  before  they  took  your  father  away?  " 

"  Yes,  sir." 

"  Did  your  father  keep  his  gun  in  that  room  ?  " 

"  Yes,  sir." 

"  Did  he  keep  it  on  the  wall  in  a  sort  of  a 
rack?" 

"  There  was  two  nails  drove  in  the  wall, —  big 
nails, —  and  he  kept  it  hangin'  on  those  nails." 

"  Before  you  went  to  sleep  did  you  see  your 
father  with  the  gun  ?  " 

"  Yes,  sir,  while  I  was  in  bed  papa  took  the  gun 
down  from  the  wall  and  was  gettin'  ready  to  load 
it,  but  I  went. to  sleep  right  then." 

"  When  you  got  up  next  morning  where  was 
the  gun  ?  " 

"  It  was  on  the  wall  where  it  stays." 

"You  may  ask  him,"  concluded  Haggard. 


NISI  PRIUS  113 

"  We  move  to  exclude  all  this  witness'  testimony 
from  the  jury,"  he  continued. 

"  What's  the  point?  "  inquired  the  Court. 

"  All  incompetent,"  was  the  blanket  response 
made  by  Henderson. 

"Overruled,"  said  the  Court.     "Call  another." 

Henderson  wrote  in  his  memorandum :  "  Boy  not 
cross-examined ;  no  waiver  of  failure  to  swear  him. 
Motion  to  exclude  overruled." 

Tip  Allen,  deputy  sheriff,  was  next  called.  He 
had  executed  the  warrant  of  arrest  on  August  15. 
He  went  to  Dudley's  house  with  the  warrant,  about 
noon.  Told  Mr.  Dudley  his  business. 

"What,  if  anything,  did  Dudley  do  or  say?" 
asked  Haggard. 

"  He  said  very  little.  He  thought  for  some 
time  and  said :  '  I'm  ready  to  go  with  you.'  I 
asked  him  if  he  would  object  to  allowing  me  to 
examine  his  shotgun.  He  said  '  Certainly  not,  ex 
amine  it ' ;  and  I  did  so,  carefully." 

"  What  kind  of  gun  was  it?  " 

"  Double-barrel  muzzle-loader." 

"  With  reference  to  its  having  been  fired,  give 
its  appearance  ?  " 

"  The  gun  was  empty.  It  looked  to  me  like  it 
had  been  fired  recently.  It  smelled  of  freshly 
burned  powder  and  there  were  two  exploded  caps 
under  the  hammers." 

"  Is  this  the  gun?  "  exhibiting  a  gun. 

"  Yes,  sir,  that  is  it." 

"  Now,  did  you  say  anything  to  Dudley  about 
his  shoes  or  the  tracks?" 


ii4  NISI  PRIUS 

'  Yes,  I  did.  I  told  him  there  were  some  tracks 
in  the  yard,  and  asked  him  if  he  would  object  to 
lending  me  a  pair  of  his  shoes  to  fit  in  the  tracks. 
He  said  he  would  be  glad  to  let  me  have  them,  and 
gave  me  a  pair." 

"  What  did  you  do  with  them?  " 

"  I  left  Mr.  Dudley  with  the  constable  and  went 
and  tried  the  shoes  in  the  tracks." 

"What  result?" 

"  Well,  they  fit  the  tracks." 

"  Now,  before  you  left  Dudley's  house  did  you 
notice  any  wound  on  his  finger?  If  so,  tell  about 
that." 

"  Just  before  we  left  —  after  I  brought  the  shoes 
back  —  Mrs.  Dudley  got  a  piece  of  cloth  and  some 
turpentine  and  tied  up  his  right  forefinger.  He 
had  a  cut  place  on  it." 

"  Did  he  say  anything  about  his  finger?  " 

"  He  just  remarked  that  he  cut  it  to  the  bone 
the  day  before." 

"  Give  the  names  of  those  who  saw  the  shoes 
fitted  in  the  tracks." 

The  witness  named  a  dozen  or  more  persons. 

"  That's  all,"  said  Haggard. 

"  Stand  aside,"  quickly  said  Henderson. 

Henry  Reno  was  the  next  witness.  He  was 
editor,  owner,  publisher,  typesetter,  newsboy,  and 
janitor  of  the  Greenwood  Record,  a  weekly  news 
paper  published  at  Greenwood.  Reno  had  a  pencil 
behind  one  ear,  a  pen  behind  the  other,  and  news 
papers  protruding  from  every  pocket.  Who  and 
what  he  was  was  soon  shown. 


NISI  PRIUS  115 

"  As  publisher  of  the  Record,  do  you  club  with 
other  periodicals, —  that  is,  do  you  sell  your  paper 
and  include  other  journals?"  asked  Haggard. 

"Yes,  sir;  we  have  all  the  metropolitan  dailies 
and  others  on  our  clubbing  list." 

"  In  your  clubbing  list  is  there  such  a  periodical 
as  The  Farmer's  Gazette?  " 

"Yes,  sir." 

"  Do  you  know  the  defendant,  Hiram  Dudley?  " 

"  Quite  well." 

"  Was  he,  on  and  prior  to  last  August  14,  a 
subscriber  to  The  Farmer's  Gazette?" 

"  Yes,  sir,  he  was." 

"How  do  you  know?  " 

"  He  subscribed  for  the  Record  for  one  year 
June  17  last,  and  along  with  the  Record  he  also 
took  the  weekly  Courier  Journal  and  The  Farmer's 
Gazette.  He  told  me  afterward,  in  a  joking  way, 
that  the  fellow  who  edited  the  Gazette  was  an  ag 
riculturist  and  not  a  farmer." 

"  That  is  all,"  by  Haggard. 

"  How  many  other  subscribers  to  the  Gazette 
were  there  in  Mecklenberg  County  at  that  time  ?  " 
cross-examined  Henderson. 

"  My  books  show  sixteen." 

"  Read  the  list,  please  ?  " 

The  witness  here  read  sixteen  names,  all  of 
whom  are  strangers  to  the  reader  with  one  excep 
tion  —  James  Hanna,  Esq.  Reno  then  stood  aside. 

"  May  it  please  the  Court,"  said  Henderson, 
"  when  Mr.  Burnley  was  on  the  stand  we  neglected 
to  ask  him  a  question.  We  want  him  recalled." 


n6  NISI  PRIUS 

Burnley  again  took  the  stand.  Henderson,  in 
wardly  a  fit  patient  for  a  nerve  expert,  outwardly 
as  calm  as  any  disinterested  onlooker,  proceeded 
to  the  dangerous  question  he  and  Brownlow  had 
deferred  till  now. 

"  When  you  were  waiting  for  chicken  thieves," 
began  Henderson,  "  on  the  night  of  the  tragedy, 
you  say  you  are  sure  it  was  Dudley  who  rode  by 
you?" 

"  Yes,  I  am  positive." 

"  Wasn't  it  too  dark  for  you  to  surely  recognize 
him?" 

"  No,  sir ;  I  could  tell  almost  as  plain  as  I  now 
recognize  you." 

"  But  you  could  only  see  a  dim  form  on  horse 
back —  a  mere  outline?" 

"  No.  I  could  see  everything,  his  hat,  his  face, 
his  arms,  and  I  could  see  both  his  hands  on  the 
bridle.  It  was  plain  as  day.  I  wasn't  eight  feet 
from  him  as  he  passed." 

"  Then  you  could  see  his  arms  and  hands  —  both 
hands  —  holding  the  bridle?  " 

"  Yes,  that  is  true." 

"  Then,"  triumphantly  pressed  Henderson,  "  he 
had  nothing  in  his  hand  other  than  the  bridle  ?  " 

"  He  did  not." 

"  Are  you  sure  ?  " 

"  Absolutely  sure." 

"  He  did  not  have  a  shotgun,  then  ?  " 

"  I  never  saw  it." 

"  You  saw  both  hands, —  his  saddle,  his  shoul 
ders  and  all, —  and  you  swear  he  had  no  shotgun?  " 


NISI  PRIUS  117 

"  I  do.  He  could  not  have  had  a  shotgun  with 
out  me  seeing  it." 

"  Stand  aside ;  that  is  all,"  and  Dudley's  lawyer's 
heart  beat  quiet. 

"  Gentlemen,"  said  Judge  Lowden,  "  it's  grow 
ing  late  and  we'll  adjourn  here.  Mr.  Sheriff,  what 
deputy  will  you  have  to  take  charge  of  this  jury 
for  the  night?" 

"  Mr.  Allen,  your  Honor,"  replied  that  kind  but 
thoughtless  functionary.  Henderson  was  on  his 
feet  and  at  the  Judge's  bench  in  an  instant. 

"  Don't  worry,  Tom,"  said  the  Court  privately 
to  Henderson,  before  he  could  speak.  Then  quietly 
addressing  the  sheriff,  Judge  Lowden  reminded 
him  that  Allen  was  a  witness  in  the  case  and  it 
would  be  improper  to  place  the  jury  in  his  cus 
tody.  Deputy  Howard  was  then  chosen,  and 
sworn  to  keep  the  jury  together,  suffering  no  per 
son  to  speak  to  any  of  them,  "  and  that  you  will 
not  do  so  yourself,  concerning  any  matter  relating 
to  this  case,"  etc.,  etc. 

"  Now,  gentlemen,"  continued  the  Court,  ad 
dressing  the  jury,  "  you  are  to  be  kept  together  as 
the  law  requires  in  this  sort  of  case.  I  want  to 
caution  you.  This  is  a  very  critical  period  in  this 
trial  —  you  can't  be  too  prudent  and  too  careful. 
I  don't  want  any  man  to  find  out  how  any  jury 
man  views  this  case.  If  you  are  in  any  way  ap 
proached,  remember  it  is  an  insult  to  you  and  con 
tempt  of  this  court.  I  don't  apprehend  any  such 
thing,  but  should  it  occur,  you  report  it  to  the  Court 
and  I  will  see  that  it  is  never  repeated.  I  want 


NISI  PRIUS 

you  to  try  this  case  like  twelve,  disinterested  gen 
tlemen  ought  to  try  a  case.  Don't  discuss  it  in 
any  way.  Don't  make  up  your  minds  until  you 
have  heard  it  all  in  the  orderly,  sober,  quiet  way 
provided  by  law.  Go  now,  gentlemen,  until  nine 
o'clock  to-morrow  morning.  Everybody  remain 
seated  until  the  jury  passes  out.  Mr.  Sheriff,  ad 
journ  court." 

And  as  the  building  was  emptying  itself,  its  old 
rafters  echoed,  as  it  had  done  for  many  a  year, 
with  the  now  almost  extinct: 

"  Oyez !  oyez !  the  honorable  Mecklenberg  Cir 
cuit  Court  now  stands  adjourned  until  nine  o'clock 
to-morrow  morning." 


CHAPTER  XII 

PROMPTLY  at  the  appointed  hour  the  following  day 
hostilities  were  resumed.  Haggard  called  and  ex 
amined  a  half  dozen  witnesses,  who  made  state 
ments  similar  to  those  of  Mrs.  Thomas  and  Tip 
Allen  regarding  the  tracks  and  the  shoes. 

He  then  called  Bud  Jones,  who  testified  to  hear 
ing  Dudley,  three  weeks  before  the  killing,  say  that 
he  would  kill  Jack  Thomas  if  he  ever  annoyed  him 
any  more.  He  was  not  cross-examined. 

In  the  vulgar  jargon  of  the  profession  Haggard 
was  reserving  his  "  big  gun  "  for  the  last.  Hen 
derson  was  aware  of  this  habit  of  his  antagonist. 
He  thought  he  knew  what  the  particular  "  big 
gun  "  was,  but  despite  this  knowledge  he  could  not 
overcome  a  certain  grave  misgiving,  when  he 
looked  at  the  impenetrable  Haggard,  with  his  gran 
ite-like  expression. 

Haggard  had  about  "  filled  in  "  all  the  gaps  in 
the  evidence,  a  proceeding  so  dull  and  uninterest 
ing  to  the  public  and  of  so  vital  importance  to  the 
making  of  a  well-rounded,  perfect,  complete  case. 
This  "  filling  in  "  process  is  carried  out  by  calling 
this  witness  and  that  witness  to  prove  small  and 
comparatively  insignificant  facts.  Such  minor  de 
tails,  taken  separately,  amount  to  nothing;  mar 
shaled  collectively  by  a  skillful  and  adroit  advocate 
the  public  then  realizes  their  immense  value  and 
importance. 

119 


120  NISI  PRIUS 

Having  thus  "  touched  up  "  his  case,  the  Com 
monwealth's  Attorney  concluded  to  fire  his  "  big 
gun,"  then  close  and  watch  the  enemy  defend  him 
self. 

"  Call  Miss  Mary  Holland,"  said  he. 

Now,  Miss  Holland  was  a  cousin  to  Mrs.  Dud 
ley  and  resided  with  the  Dudleys.  She  had  lived 
with  them  for  several  years,  and  was  a  member  of 
that  household  at  the  time  this  tragedy  occurred. 
When  her  name  was  called  Henderson,  though  he 
knew  her  testimony  was  extremely  dangerous  to 
him,  sighed  a  sigh  of  relief.  Better,  anything, 
than  springing  a  surprise  at  this  stage  of  the  trial. 
He  knew  that  this  was  Haggard's  final  thrust  and, 
though  a  broadside,  it  were  better  than  a  sudden, 
unexpected  stab  in  the  dark.  He  despised  woman's 
tongue  in  general,  when  he  reflected  that  Haggard 
would  never  have  had  this  witness  from  under  Dud 
ley's  own  roof  but  for  her  innocent  indiscretion  in 
talking  promiscuously  on  the  day  of  Dudley's  arrest. 
It  seemed  the  very  irony  of  fate  that  this  woman, 
who  loved  the  earth  under  the  defendant's  feet, 
should  be  almost  the  chief  reliance  of  the  prosecu 
tion  against  him.  When  she  finally  saw  and 
grasped  her  position,  she  had  wept  bitterly  on  Mrs. 
Dudley's  shoulder,  then  raged  and  stamped  her 
foot,  and  finally,  with  commendable  heroism  but 
doubtful  integrity,  offered  to  merrily  perjure  her 
soul  and  deny  it  all.  Hiram  Dudley  had  thought 
it  over.  One  day  he  sent  for  her  to  come  to  the 
jail. 

"  Mary,"  said  he,   "  this  is  bad  enough ;  don't 


NISI  PRIUS  121 

make  it  worse.  You  must  tell  the  exact  truth  on 
the  witness  stand.  There  are  two  reasons:  First, 
it  is  the  truth ;  second,  they  could  prove  you  lied  if 
you  denied  it." 

"  You  reside  with  the  Dudleys,  I  believe  ?  "  began 
Haggard. 

"  Yes,  sir,  I  do." 

"  Were  you  living  there  last  August?  " 

"  I  was." 

"  Were  you  at  home  —  there  —  the  night  Mr. 
Thomas  was  killed  ?  " 

"  I  was." 

"  Where  were  you  that  night,  after  ten  o'clock  ?  " 

"  I  was  in  my  room  at  Mr.  Dudley's." 

"  Does  your  room  join  his  room?  " 

"  Yes,  it  does." 

"  Did  you  see  or  hear  him  that  night  after  ten 
o'clock?" 

"  Yes,  sir." 

"  Tell  how  that  happened,  what  you  saw,  the 
time,  etc." 

"  Well,  my  room  joins  Hiram's.  It  was  a  very 
hot  night,  and  we  had  all  the  windows  and  doors 
open.  Mrs.  Dudley  and  I  talked  until  about  nine 
o'clock,  and  then  retired.  She  went  to  her  room, 
where  the  two  children  were  asleep,  and  I  remained 
in  my  room.  Mr.  Dudley  was  then  sitting  in  his 
wife's  room  —  where  the  children  were  —  reading. 
I  left  my  room  door  open  and  went  to  bed,  extin 
guishing  the  light  in  my  room.  I  immediately 
went  fast  asleep.  Some  time  later,  I  don't  know 
whether  eleven  or  twelve  o'clock,  I  was  awakened 


122  NISI  PRIUS 

by  Mr.  Dudley's  voice  in  the  side  yard,  saying, 
'  Wooh,  Dick ! '  —  Dick  is  the  young  horse  on  the 
place.  He  kept  this  up  awhile,  and  finally  I  heard 
the  stable  door  shut  and  Hiram  entered  the  house, 
coming  around  and  entering  the  front  door.  I  paid 
no  particular  attention  to  it,  as  he  had  been  going 
down  to  Mr.  Jason's,  sitting  up  at  night  with  Mr. 
Jason,  who  was  then  quite  sick.  He  came  into  the 
hall  and  walked  into  his  wife's  room,  she  in  the 
meantime  speaking  to  him.  She  struck  a  light 
presently  and,  lying  in  my  bed,  I  could  see  him.  It 
was  then  he  walked  to  the  nails  on  the  wall  and 
hung  up  the  shotgun  he  had  in  his  hands." 

"  The  first  you  saw  was  Dudley  putting  the  shot 
gun  on  the  nails  in  the  wall  ?  " 

"  Yes,  sir." 

"  And  that  was  between  eleven  and  twelve 
o'clock?" 

"  I  should  say  about  that  time." 

"  Was  Dudley  in  the  habit  of  coming  in  with  his 
shotgun  at  that  hour  of  the  night?  " 

"  No,  sir." 

"  Did  you  ever  know  it  to  happen  before?  " 

"  No,  sir." 

"  You  may  ask  her,"  said  Haggard. 

"  Stand  aside  for  the  present,"  directed  Hender 
son. 

"  The  Commonwealth  will  rest  here,  your 
Honor,"  announced  Haggard. 

Henderson,  Brownlow,  and  Dudley  conferred 
briefly.  Henderson  then  arose  to  make  the  open 
ing  statement  for  the  defense.  This  is  all  he  said : 


NISI  PRIUS  123 

"  Your  Honor,  please,  and  you  gentlemen  of  the 
jury,  I  am  constrained  to  feel  that  you,  as  the  triers 
of  this  case,  had  rather  hear  this  defendant's  testi 
mony  directly  from  his  witnesses  than  from  his  re 
tained  attorney.  Perhaps,  in  a  feverish,  long-cher 
ished  hope  of  seeing  the  defendant  once  more 
breathe  the  free  air  of  heaven,  I  should  be  made  the 
partisan  defender  of  his  innocence,  rather  than  the 
true  and  accurate  narrator  of  the  facts.  There 
fore,  knowing  my  utter  incapacity  to  relate  the 
story  of  each  of  his  witnesses  without  discolora 
tion,  I  shall  forego  that  task,  leaving  them  to  tell  it 
all  to  you  from  this  witness  stand.  As  I  grow  in 
years  and  experience  in  this  grave  business  of  try 
ing  men  for  their  lives  and  liberties,  I  begin  to  real 
ize  the  utter  futility  of  attempting  to  undervalue  the 
evidence  offered  by  the  other  side.  I  confess  my 
friend,  the  learned  Commonwrealth's  Attorney,  has 
presented  a  wonderful  chain  of  circumstances. 
But,  my  friends,  if  fate  has  been  unkind  to  this 
young  husband  and  father  in  arraying  all  these  bits 
of  evidence  against  him,  fortune  has  fully  compen 
sated  by  making  possible  of  proof  another  array  of 
indisputable  facts,  which  at  once  pronounce  his  in 
nocence.  But  for  this  latter  series  of  circum 
stances,  I  shudder  at  what  might  have  been  the 
consequences  here.  Circumstantial  evidence,  at 
best  a  cruel,  relentless  engine  of  oppression,  hence 
forth  to  me  shall  be  always  disregarded  and  looked 
upon  as  a  monster  viper,  attempting  to  coil  about 
the  very  vitals  of  some  unfortunate  man  who  hap 
pens  not  to  have  a  witness  to  the  real  fact.  There 


124  NISI  PRIUS 

are  pages  of  history  that  run  red  with  instances 
where  innocent  men  have  been  condemned  to  death 
on  circumstantial  evidence,  and  after  their  bones 
had  rotted  in  avoided  and  despised  sepulchers  the 
fearful  and  terrible  mistake  discovered.  And,  gen 
tlemen,  there  are  other  pages  of  other  history  where 
enlightened  jurymen  have  refused  to  administer 
justice  of  the  type  of  the  Dark  Ages,  and  have 
stood  firm  and  resolute,  demanding  something  more 
than  suspicion  before  condemning  a  fellow-man  to 
death.  It  may  be  —  I  do  not  know  —  that  some 
of  you  have  had  personal  experience  with  this  thing 
—  circumstantial  evidence.  I  trust  such  is  the 
case,  for  then  perhaps  you  will  the  more  patiently 
lend  an  ear  to  this  young  man.  You  have  heard  it 
said,  doubtless,  that  so  long  as  all  the  links  are 
there,  a  chain  of  circumstantial  evidence  is  stronger 
than  any  direct  evidence;  that  witnesses  to  the  fact 
may  lie,  may  err,  may  not  remember;  but  that  cir 
cumstances  cannot  lie,  or  err,  or  forget.  I  take  is 
sue  here.  In  direct  evidence,  it  is  quite  true,  the 
witness  may  lie;  but  if  not  lying,  no  doubt  exists. 
In  circumstantial  evidence  you  have  not  only  the 
likelihood  of  the  witness  to  the  circumstance  lying, 
but,  in  addition,  the  circumstance  itself  may  lie. 
In  direct  evidence  you  have  the  one  lie  to  guard 
against,  while  in  circumstantial  evidence  you  have 
to  deal  with  two  possible  lies  —  the  relator  of  the 
circumstance  and  the  circumstance  itself.  And 
when  you  shall  have  heard  this  defendant's  evi 
dence  you  will  understand  what  I  mean  by  circum 
stances  lying.  For  example,  the  footprints  told  a 


NISI  PRIUS  125 

terrible  lie;  the  handkerchief  bandage  duplicated 
the  perjury;  the  gun  wad,  a  circumstance,  told  the 
most  terrible  lie  of  them  all.  Had  that  tissue  of 
falsehoods  been  told  by  direct  evidence,  we  could 
have  cross-examined  the  witnesses;  but  we  cannot 
cross-examine  an  inanimate  gunwad,  a  handker 
chief,  a  footprint.  We  can  account  for  them,  pro 
vided, —  and  that's  an  awful  word  at  this  juncture 
—  provided,  we  chance  to  have  a  witness  in  addi 
tion  to  the  defendant.  I  flatter  myself  that  I  know 
you  twelve  men.  I  know  you  will  not  take  from 
this  little  woman  and  these  glorious  handsome  boys 
this  husband  and  father  unless  you  know  —  not 
merely  suspect  —  that  he  is  a  murderer.  I  shall 
trust  you  to  follow  the  evidence,  step  by  step,  or, 
to  gratify  the  ear  of  the  learned  prosecutor,  link  by 
link." 

"  Mr.   Dudley,  be  sworn,"  said  the  speaker,  as 
he  resumed  his  seat. 


CHAPTER  XIII 

THE  defendant,  being  sworn,  took  the  witness  stand 
without  the  slightest  emotion  or  trepidation. 

"  Your  name?  "  began  Henderson. 

"  Hiram  Dudley." 

"Your  age  and  place  of  residence?" 

"  Thirty- four  years  of  age.  I  live  out  here  on 
a  little  farm  —  the  old  Warren  place  —  about  eight 
miles  from  town." 

"  Are  you  married  ?  " 

"  Yes,  sir." 

"  Whom  did  you  marry?  " 

"  I  married  Ella  Jameson." 

"When?" 

"  Eleven  years  ago." 

"  Have  you  any  children?  " 

"  We  have  two  boys  there,  John  and  Will." 

"How  old  are  they?" 

"  John  is  eight  and  Will  is  six." 

For  the  laymen's  information,  should  a  layman 
do  us  the  honor  to  attempt  these  pages,  it  is  here 
said  that  Henderson  was  asking  these  simple  ques 
tions  chiefly  to  afford  the  witness  ample  opportu 
nity  to  become  accustomed  to  the  witness  stand. 

"  How  long  have  you  lived  on  this  farm?  " 

"  About  twelve  years." 

"  With  relation  to  the  Thomas  farm,  where  is 
your  farm  ?  " 

"  My  land  joins  the  Thomas  land ;  but  by  the 
126 


NISI  PRIUS  127 

public  road  it  is  about  two  miles  from  my  gate  to 
his." 

"  Where  is  the  Burnley  place  ?  " 

"  It  is  between  my  gate  and  the  Thomas  place 
—  about  half  way." 

Henderson  had  spent  many  hours  over  just  what 
method  he  would  employ  in  examining  the  defend 
ant.  He  had  the  saving  sense  to  realize  that  his 
client's  life  or  liberty  depended  to  a  very  large  de 
gree  upon  the  impression  he  made  upon  his  hear 
ers.  It  was  his  opinion  that  Haggard  expected 
Dudley  to  flatly  deny  many  of  the  condemning  cir 
cumstances.  This  was  far  from  the  defendant's 
intention,  and  still  further  removed  from  his  at 
torneys'  plans.  It  would  have  gratified  Haggard 
immeasurably  had  the  defendant  boldly  contro 
verted  all  these  proved  facts.  Unfortunate  is  the 
witness  who  denies  a  fact  clearly  proved  against 
him.  Wise  is  the  witness  who  admits  all  proved 
facts  and,  in  lieu  of  denial,  substitutes  explanation. 
So,  after  much  serious  consideration  and  consulta 
tion  with  Brownlow,  Henderson  had  determined 
to  proceed  with  the  examination,  rather  reversing 
the  usual  order.  He  could  not  resist  noticing  the 
effect  on  Haggard  as  he  proceeded. 

"  Did  you  pass  Mr.  Burnley's  gate  between  eleven 
and  twelve  o'clock  on  the  night  of  this  murder, 
riding  horseback?  " 

"  I  did." 

"  When  you  reached  your  home,  did  you,  when 
you  had  entered  your  room,  hang  your  shotgun  on 
the  rack  on  the  wall  ?  " 


128  NISI  PRIUS 

"  I  did." 

"  On  the  day  before  the  killing  had  you  cut 
your  finger  ?  " 

"I  had." 

"  On  the  day  of  the  killing,  did  you  have  your 
finger  bandaged  ?  " 

"  Yes,  sir,  I  did." 

"  Had  you  at  that  time  a  white  setter  bird  dog 
that  usually  followed  you?" 

"  Yes,  sir.     There  he  lies  under  that  table  now." 

"  When  the  deputy  sheriff  examined  your  shot 
gun  on  the  day  following  the  killing,  was  it  loaded 
or  unloaded?  " 

"  The  gun  was  then  empty." 

"  Is  it  true  that  it  then  smelled  of  burnt  powder 
and  had  it  been  recently  fired  ?  " 

"  That  is  true.  It  had  been  fired  the  evening 
before." 

All  this  staggered  Haggard.  Every  time  the  de 
fendant  admitted  the  truth  of  one  of  the  State's 
facts  the  profound  prosecutor  felt  that  another  ar 
gument  had  been  swept  away.  He  turned  to  the 
County  Attorney  and  muttered: 

"  Looks  like  he's  going  to  wind  up  by  pleading 
guilty." 

But  the  State's  counsel,  nevertheless,  was  sorely 
disappointed  at  the  enemy's  method  of  fighting. 
He  would  so  much  more  have  preferred  to  stand 
his  clearly  proved  facts  alongside  the  defendant's 
unsupported  and  interested  denial. 

"  Were  you,  at  the  time  of  the  killing,  a  regular 
subscriber  to  The  Farmer's  Gazette?" 


NISI  PRIUS  129 

"  I  was,  and  am  still." 

"  You  recall,  your  little  boy  John  testified  that 
after  supper  on  the  evening  of  the  tragedy,  just 
before  he  fell  off  to  sleep,  you  took  your  gun,  got 
the  loading  material  and  prepared  to  load  the  gun 
—  then  he  went  to  sleep?  Is  that  true?  " 

"  Yes,  that  is  true." 

Haggard,  externally  still  placid,  shook  himself 
as  men  sometimes  do,  thinking  perhaps  they  are 
dreaming  and  the  thing  is  not  real  after  all.  Here 
was:  a  defendant  calmly  admitting  every  fact  proved 
by  the  Commonwealth.  Would  he  never  deny  at 
least  one? 

"  Ah,  Henderson,"  he  reflected,  "  I  have  you  on 
this  mass  of  undeniable  evidence.  You  realize  it 
and  propose  to  admit  all  my  facts  and  deny  my  con 
clusions." 

"  Were  you,"  resumed  Henderson,  who  thought 
he  read  some  of  Haggard's  reflections,  "  were  you 
at  and  before  the  time  of  this  killing  on  friendly 
or  unfriendly  terms  with  Jackson  Thomas?" 

"  We  were  on  unfriendly  terms.  We  did  not 
speak  and  had  not  spoken  for  several  years." 

"Do  you  know  the  witness  Bud  Jones?" 

"  I  do." 

"  Did  you  at  Kedron  Church,  about  three  weeks 
before  the  killing,  have  any  talk  with  Jones  relat 
ing  to  Mr.  Thomas  ?  " 

"  Mr.  Jones  did  most  of  the  talking  —  yes,  such 
a  conversation  took  place." 

"  Did  you  say  in  the  presence  of  Bud  Jones,  at 
the  time  and  place  indicated,  or  say  in  substance, 


130  NISI  PRIUS 

that  you  proposed  to  kill  Jackson  Thomas  if  he 
should  annoy  you  again  ?  " 

"  Yes,  substantially  that.  I  want  to  say,  though, 
that  Mr.  Jones  only  told  a  part  of  that  talk.  What 
he  said  was  true,  but  he  did  not  tell  that  he  said 
to  me " 

"  We  object,  your  Honor,"  said  Haggard,  glad 
to  relieve  his  pent-up  feeling. 

"  Now,  your  Honor,"  said  Henderson,  "  Jones 
singled  out  an  extract,  a  fraction  of  an  entire  con 
versation.  Isolated,  it  has  an  entirely  different 
purport  and  meaning  than  it  has  as  a  part  of  the 
entire  conversation.  We  insist  that  all  the  conver 
sation —  that  is,  all  of  it  relating  to  this  subject, 
—  is  competent." 

"  You  may  detail  all  of  the  conversation,"  ruled 
the  Court,  "  relating  to  Mr.  Thomas.  You  must 
draw  the  line  there." 

"  Now,"  resumed  Henderson,  "  tell  the  jury  all 
that  was  said  in  connection  with  Jackson  Thomas 
in  that  conversation." 

"  Well,  Jones  began  the  talk.  He  asked  me  if 
people  in  the  country  where  I  came  from  submit 
ted  to  a  man  slandering  the  women  folks.  I  asked 
him  what  he  meant.  He  replied  that  Mr.  Thomas 
had  said  to  him  that  my  wife's  virtue  and  my  char 
acter  were  about  on  a  par.  I  did  not  believe 
Thomas  had  said  such  a  thing,  and  so  told  Jones. 
He  insisted  he  had.  We  argued  it.  I  said  to  him, 
'  Bud  Jones,  Thomas  never  said  such  a  thing  for 
two  reasons.  First,  he  has  no  cause  to  do  so ;  sec 
ond,  he  ought  to  know  that  if  he  ever  began  that 


NISI  PRIUS  131 

sort  of  annoyance  I  would  kill  him  on  sight!  That 
is  about  what  I  said.  Jones  still  argued.  I  saw 
he  was  a  busybody  interested  in  getting  up  trouble, 
and  I  left  him." 

"Are  you  in  the  habit  of  hunting  squirrels?" 

"  Yes,  very  often." 

"  Did  you  usually  keep  your  gun  loaded  with 
squirrel  shot  ?  " 

"  Nearly  always." 

"  Was  your  gun  a  muzzle-loader?  " 

"  It  was." 

"  Did  you  frequently  make  the  wads  out  of  news 
papers  that  were  lying  about  your  house  ?  " 

"  Yes,  nearly  always." 

"  On  the  night  of  the  killing  was  Mary  Holland 
staying  at  your  house  ?  " 

"  She  was." 

"  When  you  came  in  did  your  wife  make  a 
light?" 

"  Yes,  sir,  she  did." 

"  Do  you  recall  whether  the  door  leading  from 
your  room  to  Miss  Holland's  room  was  open  or 
closed?" 

"  I  do  not  recollect,  for  sure,  but  my  best  judg 
ment  is  the  door  was  open." 

"Did  you  kill  Jackson  Thomas?" 

"  I  did  not,  as  God  reigns  and  as  I  love  that 
woman  and  these  two  boys." 

"  Were  you  in  his  yard  or  anywhere  near  his 
door  on  that  night?" 

"  I  was  not." 

"  Now,  Mr.  Dudley,  I  want  you  to  begin  at  the 


I32  NISI  PRIUS 

beginning  and  tell  this  jury  all  about  your  move 
ments  on  that  night  ?  " 

Twelve  men  were  leaning  intently  forward. 
Judge  Lowden  had  long  since  discarded  his  news 
paper  and  Haggard  fastened  his  piercing  eye  on 
the  witness  as  if  to  fathom  all  his  depths.  He  had 
studied  men,  and  had  read  many  liars  by  counte 
nance.  Here  was  a  simple  farmer  putting  at  sea 
all  his  erstwhile  successful  methods.  The  witness 
was  neither  bold  nor  backward.  He  was  quiet,  yet 
intense ;  mild  yet  firm.  Had  he  been  otherwise  this 
prosecutor  of  long  experience  would  not  have  held 
that  per  se  against  him.  He  had  long  since  learned 
that  when  life  or  liberty  is  at  stake,  when  rustics 
unaccustomed  to  public  appearance,  when  timid 
women  are  put  under  the  gaze  of  crowds  of  strange 
faces,  when  men  easily  embarrassed  testify,  all  of 
these,  he  knew,  stammered  and  colored  and  contra 
dicted  themselves,  and  thereby  not  infrequently 
were  put  down  as  liars  by  those  inexperienced  in 
the  study  of  witnesses.  Every  lawyer  has  seen  the 
most  scrupulous  witness  become  so  embarrassed 
by  public  appearance  that  he  made  the  wildest,  most 
absurd  statements.  When  jurymen  learn  to  dis 
tinguish  between  embarrassment  and  dishonesty 
perhaps  justice  will  less  often  miscarry. 

None  of  these  suggestions  are  germane  to  Dud 
ley.  Quietly,  he  thus  told  his  story. 

"  I  will  tell  it  the  best  I  can.  I  usually  feed  the 
stock  about  dark  every  evening.  On  the  evening 
of  Mr.  Thomas'  death  I  was  at  my  stock  barn  a 
little  earlier  than  usual.  I  led  two  mules  down  to 


NISI  PRIUS  133 

the  pond  for  water,  and  as  I  did  so  a  lot  of  doves 
flew  up  from  the  pond.  As  you  know,  dove  shoot 
ing  about  here  is  good.  I  took  the  mules  back  to 
the  barn,  went  to  the  house  and  got  my  gun.  When 
I  reached  the  pond  a  lot  of  them  were  on  the  edge 
of  the  water,  drinking.  I  fired  the  right  barrel 
and  killed  three  at  one  shot.  When  the  others  flew 
up  I  tried  them  on  the  wing,  but  missed.  I  took 
the  three  doves  to  the  house.  It  was  too  late  to 
cook  them  for  supper,  and  the  folks  had  them  next 
day.  That's  how  it  happened  my  gun  was  empty 
and  showed  that  it  had  been  freshly  fired.  I  took 
the  gun  in  my  room,  intending  to  clean  and  reload 
it  after  supper. 

"  After  supper  we  —  my  wife  and  I  —  put  the 
boys  to  bed.  William,  the  little  fellow,  at  once 
went  to  sleep.  John  remained  awake  for  some  lit 
tle  time.  He  has  always  been  interested  in  guns, 
and  would  not  go  to  sleep  until  I  agreed  with  him 
to  clean  and  load  the  gun.  To  humor  the  boy,  I 
got  the  gun,  loading  material,  rags,  etc.,  and  pre 
tended  to  begin  loading  it.  The  boy,  already  very 
sleepy,  dropped  off  to  sleep  just  as  I  had  begun. 
I  put  the  gun  on  the  floor  by  the  table,  laying  it 
down  flat  and  picked  up  a  paper  and  began  to  read. 
My  wife  went  into  Mary  Holland's  room  and  they 
talked  in  there  until  about  nine-thirty  o'clock  and 
Mary  put  out  her  light  and  went  to  bed.  Wife  and 
I  talked  until  about  ten  o'clock,  I  should  say,  and 
she  concluded  to  go  to  bed. 

"  Mr.  Jason,  who  lived  down  the  road  north  of 
me  about  a  quarter  of  a  mile  beyond  Mr.  Thomas, 


134  NISI  PRIUS 

had  been  very  sick.  The  neighbors  had  been  sit 
ting  up  with  him  at  night,  and  this  night  it  was  my 
time.  I  was  to  be  there  at  about  eleven  o'clock. 
My  wife  knew  this  and  went  to  bed. 

"  I  went  to  the  barn  and  saddled  a  young  three- 
year-old  I  had  been  using,  trying  to  break  him.  I 
mounted  him  and  left  my  premises.  As  I  went  by 
Mr.  Burnley's  house  I  saw  him  open  his  front  door 
and  walk  out  on  to  the  porch.  My  horse  was  spir 
ited  and  was  prancing  in  the  sandy  road  there  in 
front  of  Mr.  Burnley's  gate.  I  got  by,  though,  in 
a  minute  and  I  don't  think  Mr.  Burnley  saw  me  at 
that  time.  I  rode  on  down  the  road  in  the  moon 
light,  and  before  I  got  to  the  Thomas  place  I  passed 
an  old  traction  engine  on  the  roadside.  My  young 
horse  frightened  at  this,  but  I  soon  quieted  him  and 
after  that,  a  short  distance,  I  passed  Mr.  Thomas' 
house.  It  was  all  dark  and  quiet.  I  continued  on 
past  the  Thomas  place  until  I  came  to  the  Gray- 
son  place.  Mr.  Grayson  was  just  entering  his  gate, 
leading  a  horse  and  buggy.  We  spoke,  and  I  in 
quired  about  Mr.  Jason.  He  said  he  was  about 
the  same,  but  that  he  was  too  sick  to  be  alone  at 
night,  and  that  Jackson  Thomas  was  to  sit  up  with 
him  that  night " 

"  We  object  to  the  conversation  with  Mr.  Gray- 
son,"  interrupted  Haggard. 

"  No,  don't  tell  the  conversation  you  had  with 
Grayson.  Wrhat  information  did  you  obtain  from 
Grayson  ?  "  asked  Henderson. 

"  That  Mr.  Thomas  was  to  sit  up  with  Jason 
that  night.  He  had  just  come  from  there  and 


NISI  PRIUS  135 

Thomas  was  expected  when  he  left.  Mr.  Gray- 
son  died  a  month  after  that,  but  Mr.  and  Mrs.  Ja 
son  are  here. 

"  Well,"  continued  Dudley,  "  I  knew  it  would 
not  do  for  Mr.  Thomas  and  me  to  be  there  at  the 
same  time.  Only  one  man  was  needed,  and 
Thomas  and  I  did  not  speak.  I  then  concluded  to 
go  on  back  home.  I  was  walking  the  young  horse, 
and  I  passed  Mr.  Thomas'  house  on  my  way  back 
and  walked  the  horse  down  the  road.  I  came  upon 
the  old  traction  engine  unexpectedly.  My  horse 
gave  a  tremendous  jump,  shied,  and  then  lunged 
forward,  beginning  to  run  away.  At  that  instant 
I  heard  the  report  of  a  gun  —  one  shot  —  in  the 
distance  behind  me.  The  colt  got  the  best  of  me 
and  ran  like  the  wind.  I  had  both  hands  on  the 
bridle  and  was  pulling  back  as  hard  as  I  could 
and  sawing  his  mouth  all  the  time.  This  is  what 
I  was  doing  when  I  passed  Mr.  Burnley's  house 
then.  As  the  colt  recognized  his  home  gate  he 
stopped.  I  went  into  the  side  yard  with  him  and 
had  trouble  getting  him  into  the  barn.  The  noise 
I  there  made  is  what  awakened  Mary  Holland. 

"  I  then  went  around  the  house  and  unlocked 
the  front  door  and  went  into  the  hall  and  then  into 
our  room.  My  wife  did  not  expect  me  home  until 
morning,  and  was  a  little  frightened.  She  spoke 
to  me  in  the  dark,  and  I  answered.  I  had  no 
match  with  me,  but  the  lamp  and  matches  were  at 
the  head  of  her  bed,  and  she  lit  the  lamp.  While 
she  was  lighting  it  my  feet  struck  something  on 
the  floor,  near  the  table,  and  then  I  remembered 


136  NISI  PRIUS 

I  had  forgotten  to  load  the  gun.  Just  as  my  wife 
was  putting  the  match  to  the  lamp,  I  picked  up  the 
gun,  and  then  the  light  shone  brightly.  I  walked 
across  the  room  and  hung  the  gun  on  the  wall. 

"  In  a  few  minutes  I  explained  to  my  wife  why 
I  came  home  so  unexpectedly,  undressed,  went  to 
bed  and  was  soon  asleep.  The  next  day  I  heard 
of  Mr.  Thomas'  killing,  and  that  I  was  suspected. 
I  did  nothing,  and  could  do  nothing.  At  about 
noon  I  was  arrested  and  taken  to  town  and  put  in 
jail,  where  I  have  been  since." 


CHAPTER  XIV 

HENDERSON,  himself  a  firm  believer  in  his  client's 
absolute  innocence,  agreed  with  himself,  so  to 
speak,  that  he  could  present  a  strong  case  of  not 
guilty. 

The  question  of  who  killed  Thomas,  presuming 
Dudley  did  not,  was  quite  another  matter.  Was 
it  incumbent  on  him  to  fasten  the  crime  on  the 
guilty  man,  or  merely  to  establish  the  fact  that  his 
client  did  not  do  it?  On  the  question  of  Dudley's 
guilt  Henderson  was  quite  satisfied  that  respectable 
and  strong  evidence  was  at  hand;  as  to  who  was 
the  real  assassin  the  proof  became  hazy  and  largely 
speculative.  Weighing  this  in  all  its  phases,  he  had 
finally  resolved  to  bend  every  effort  in  marshaling 
the  facts  conducing  to  show,  first,  that  Dudley  did 
not  fire  the  fatal  shot;  second,  that  a  certain  other 
individual  did  fire  it.  It  would  be  superfluous  to 
add  that  he  had  far  more  faith  in  his  ability  to 
demonstrate  the  truth  of  proposition  No.  I  than 
that  of  proposition  No.  2. 

The  examination  was  resumed. 

"  Did  you  have  any  motive  or  reason  to  kill 
Jackson  Thomas  ?  " 

"  None  whatever." 

"  Did  you  have  or  ever  have  any  transaction  of 
any  nature  with  him  involving  nine  hundred  dol 
lars?" 

"  None  whatever." 

"  Did  you  ever  have  any  transaction  of  any  kind 
with  him  involving  any  money  in  any  amount  ?  " 

i37 


138  NISI  PRIUS 

"  None,  except  the  trouble  we  had  about  the  hogs 
—  absolutely  none." 

"  Did  you  ever  have  any  transaction  of  any  kind 
with  him,  in  which  the  city  of  Leavenworth  was  in 
volved?" 

"  None  whatever." 

"  Were  you  ever  in  Leavenworth  ?  " 

"  Never." 

"  Do  you  know  or  did  you  ever  know  any  per 
son  by  the  name  of  Leavenworth?  " 

"  Never  in  my  life." 

"  Did  you  ever  have  any  transaction  or  relation 
with  Mr.  Thomas  in  which  any  woman  was  in 
volved?" 

"  Never  in  my  life." 

"  Have  you  any  idea  of  the  meaning  or  signifi 
cance  of  the  words  '  woman,  Leavenworth,  extor 
tion/  spoken  of  by  Mrs.  Thomas  ?  " 

"  None  whatever." 

"  You  said  you  had  badly  cut  your  finger  the 
day  before  the  killing.  Now  on  the  night  of  the 
killing  was  your  finger  bandaged  with  a  white 
handkerchief  ?  " 

"  No,  sir.  I  cut  my  finger  the  day  before  with 
a  hand  ax.  My  wife  bandaged  it  that  day.  The 
next  day,  in  the  afternoon,  I  was  in  my  wife's 
room  and  she,  Mary  Holland  and  Mrs.  James,  a 
neighbor,  were  in  the  room.  My  wife  noticed  the 
bandage  was  gone  and  my  finger  swollen.  Of 
course  she  wanted  to  tie  it  up  again.  She  and 
Mary  Holland  were  doing  some  knitting  or  some 
such  work.  My  wife  held  some  yarn  or  something 


NISI  PRIUS  139 

wrapped  around  her  two  hands  and  Mary  was 
rolling  the  stuff  into  a  large  ball.  Both  of  them 
being  busy,  Mrs.  James  offered  to  bandage  the  fin 
ger.  She  got  a  piece  of  colored  calico  or  goods 
of  some  kind,  and  wrapped  my  finger  with  it.  I 
had  this  colored  stuff  on  my  finger  when  I  rode 
by  Mr.  Thomas'  house  that  night.  It  remained  on 
my  finger  all  that  night  and  until  a  short  while  be 
fore  I  was  arrested  the  next  day." 

"  On  the  night  of  the  killing,  when  you  started 
to  Mr.  Jason's,  did  your  white  setter  dog  follow 
you?" 

"  No,  sir.     He  never  followed  me  at  night." 

"  Was  the  dog  with  you  when  you  met  Mr. 
Grayson  and  received  the  information  about 
Thomas  sitting  up  with  Jason  ?  " 

"No,  sir." 

"  Was  the  dog  with  you  when  you  rode  by  Burn 
ley's  in  a  run,  going  home  ?  " 

"  No,  sir ;  the  dog  was  at  home  asleep  on  the 
floor  in  the  hall." 

"  That  is  all  for  the  present.  Ask  him,  Mr. 
Haggard,"  concluded  Henderson. 

Haggard  doubted  the  wisdom  of  a  cross-exam 
ination.  Henderson  saw  his  hesitation,  and  re 
joiced  that  these  misgivings  had  now  taken  up  their 
abode  at  the  other  table. 

"  If  you  cross-examine  him,"  whispered  Autom 
aton,  alias  the  County  Attorney,  "  he  will  only 
make  it  stronger."  Haggard  looked  his  associate 
over,  poorly  concealing  a  bored  expression. 

"  That's  nothing  to  me.     I'm  trying  to  find  out 


140  NISI  PRIUS 

whether  this  man  is  guilty.  I  believe  he  is, —  as 
guilty  as  hell, —  but  I  do  not  propose  to  dodge  the 
fullest  inquiry  in  this  or  any  other  case  I  prose 
cute." 

Now,  in  this  merry  old  world  there  are  all  sorts 
and  conditions  of  attorneys  for  the  Crown.  There 
is  the  bitter,  fox-visaged  skeptic,  to  whom  all  ac 
cused  are  prima  facie  guilty.  Class  No.  2  em 
braces  the  spineless  lot,  in  whom  the  original  milk 
of  human  kindness  has  turned  to  clabber,  with 
whom  all  accused  are  innocent.  Thanks  to  the 
divine  scheme  of  men's  creation,  Class  No.  3 
splits  evenly  the  obnoxious  extremes,  and,  behold! 
a  fearless,  unrelenting,  uncompromising  prosecutor 
of  crime  and  defender  of  innocence.  In  short,  an 
inquirer  of  the  truth. 

Haggard  turned  on  Dudley.  The  cross-exam 
ination  was  fierce,  tireless,  merciless.  The  rapid 
fire  of  questions  continued  and  continued.  Once, 
during  the  heat  of  the  battle,  Henderson  scented 
danger.  His  eagle's  eye  saw  breakers  ahead. 
The  witness,  however  cool  and  self-assured,  was 
no  match  for  this  master  of  his  science.  Like  the 
fagging  prize-fighter,  Dudley  only  needed  a  respite 
for  a  breath  or  two.  Henderson  objected  to  the 
line  of  interrogation.  He  argued  his  objection  at 
length.  The  Court  ruled  against  him.  He  re 
peated  his  argument,  as  if  hoping  to  induce  the 
Court  to  reverse  himself.  -He  won,  not  the  point, 
but  time.  Lowden  saw  and  understood  it  all.  In 
his  just  judge's  heart  he  could  find  no  censure  for 
Henderson.  He  was  judge  now,  but  long  ago  he 


NISI  PRIUS  141 

was  down  there  on  the  floor  struggling  against  just 
some  such  onslaught.  He  ruled  on  the  second  ar 
gument.  If  he  was  more  deliberate  than  usual, 
charge  it  to  his  superb  sense  of  fair  play. 

"  Proceed,  Mr.  Haggard,"  concluded  the  Court. 
Dudley  had  had  his  "  breathing  spell."  His  phys 
ical  and  mental  self  had  become  normal  again. 
Having  reflected  full  ten  minutes  on  the  last  ques 
tion,  during  the  argument,  he  said  quietly  and  with 
dangerous  humility, 

"  What  was  your  last  question,  Mr.  Haggard  ?  " 
Haggard  was  fretted  by  the  interruption.  He 
knew  the  plan  of  Henderson  in  consuming  this 
time.  It  angered  him  to  know  that  it  had  been 
highly  successful.  Yet  he  had  been  powerless  to 
prevent  it.  He  resumed  the  fierce  attack.  Spurred 
on  by  Henderson's  successful  coup,  he  grew  the 
more  relentless.  He  spared  the  witness  nothing. 
This  second  assault,  as  is  often  the  case  in  actual 
battle,  was  more  terrible  than  the  first.  Thrust 
after  thrust,  charge  after  charge,  grape,  canister, 
shrapnel,  followed  relentlessly  the  one  upon  the 
other.  At  first  the  witness  returned  blow  for  blow ; 
then  he  parried,  then  the  inevitable  result  of  prac 
ticed  skill  matched  with  inexperience,  a  look  to 
the  rear,  an  anxiousness  to  hurry  into  full  retreat. 
Dudley  was  visibly  weakening.  Already  this  ap 
peared  to  the  practiced  eye  of  his  attorney.  It  was 
not  a  question  of  lying  or  speaking  the  truth.  The 
thing  was  resolved  into  an  intellectual  duel,  be 
tween  a  giant  and  a  pigmy.  Haggard  saw  he  had 
punctured  the  enemy's  armor.  Henderson  saw  it. 


142  NISI  PRIUS 

Lowden  saw  it.  The  twelve  "  good  men  and 
true "  had  not  yet  discovered  it.  Soon  it  would 
appear  to  them.  Haggard  pressed  his  advantage. 
He  looked  the  witness  out  of  countenance  and  was 
gradually  and  mercilessly  drawing  his  net  about 
him.  To  Henderson  the  supreme  moment  of  that 
trial  had  come.  The  "  objecting  ruse  "  could  not 
be  duplicated  without  the  jury  seeing  that  he  was 
"  on  the  run."  Just  as  Haggard  was  preparing  to 
crush  the  now  hapless  defendant,  Henderson  gave 
an  almost  imperceptible  nod  to  Jim  Hanna,  who 
was  standing  in  the  doorway.  Whereupon,  Hanna, 
with  his  eternal  sang  froid,  indifferently  walked  to 
Henderson's  table  and  handed  him  a  note.  Hanna's 
nonchalance  wasi  equaled,  if  not  surpassed,  by  Hen 
derson's  surprise.  He  read  the  note  and  said 
apologetically : 

"  Your  Honor  will  pardon  me,  but  I'm  called 
to  the  long  distance  telephone  on  a  matter  of  im 
portance." 

"  Certainly,  suspend  a  few  minutes,  Mr.  Hag 
gard,"  said  the  Court,  "  until  Mr.  Henderson  re 
turns." 

"  All  right,  your  Honor,"  said  Haggard,  and 
then  under  his  breath,  "  Damn  that  fellow !  " 

Henderson  was  off  —  to  the  telephone,  and  Dud 
ley  leaned  back  in  his  chair,  thanking  God  he  had 
a  lawyer. 

Now,  O  you  ethical  reader,  judge  not,  lest  ye 
be  judged.  This  only  shall  be  said  to  you  here. 
This  lawyer,  to  the  bottom  of  his  heart  and  the 
depths  of  his  soul,  believed  his  client  was  speak- 


NISI  PRIUS  143 

ing  the  absolute  truth.  He  saw  that  client,  for 
whose  life  and  liberty  he  was  responsible,  thrust 
into  the  midst  of  a  terribly  uneven  combat.  It  was 
not  a  contest  of  truth  over  anything.  It  was  a  bat 
tle  in  which  truth  was  a  mighty  weapon,  but,  alas ! 
not  the  only  one.  It  may  have  been  a  veritable 
broadsword,  but  loquacity,  intellectuality,  skill,  per 
sistency,  coolness,  these  were  the  sharp  rapiers  and 
lances.  So,  be  it  here  confessed,  that  this  lawyer, 
with  set  jaws,  muttered  to  himself: 

"This  defendant  is  honest.  I  shall  not  suppress 
or  distort  the  truth,  but,  by  Heaven!  he  shall  not 
be  made  to  appear  dishonest."  And  so  he  left  the 
courtroom  for  the  telephone. 

When  he  returned  the  weakened  pugilist  had 
breathed  and  breathed  and  breathed  and  the  ag 
gressive  pugilist  had  become  disgusted  and,  in  a 
measure,  dispirited.  But  this  Commonwealth's  At 
torney  had,  somehow,  never  been  able  to  find  the 
word  "  quit "  in  his  lexicon.  He  attempted  the 
third  charge  upon  the  enemy's  ramparts,  but  with 
out  avail.  He  was  met  by  this  drawbridge  being 
hoisted  in  the  very  face  of  his  cohorts : 

"  Now,  may  it  please  the  Court,"  objected  Hen 
derson,  "  that  has  all  been  gone  over  two  or  three 
times.  I  must  object  to  so  much  repetition.  Your 
Honor  has  allowed  a  very  wide  latitude  already, 
and  we  must  object  to  further  repetition." 

"  I  think,"  were  the  Court's  words  —  music  to 
him  of  the  defense, — "  you  have  been  over  that  sev 
eral  times,  Mr.  Haggard,  Don't  repeat.  Pass  on 
to  some  other  matter," 


144  NISI  PRIUS 

So  thorough  and  complete  had  been  the  cross- 
examination,  that  there  remained  no  "  other  mat 
ter." 

"  Stand  aside,"  coolly  surrendered  the  sphinx- 
like  representative  of  the  State. 

Thus  ended  the  cross-examination  of  Hiram 
Dudley.  It  was  a  memorable  one.  To  this  day 
they  tell  you  of  it  in  Greenwood. 

Dudley's  case  emerged  from  the  fire  very  little 
impaired.  He  was  pressed  to  say  whether  he  met 
any  other  man  on  horseback  as  he  rode  home  after 
eral  times,  Mr.  Haggard.  Don't  repeat.  Pass  on 
one. 

'He  was  asked  to  explain  why  he  did  not  turn 
back  when  he  heard  the  shot.  He  replied  that 
he  was  some  distance  from  the  shot ;  that  the  report 
of  a  gun  in  the  country,  such  as  he  had  heard,  at 
tracted  no  particular  attention.  He  was  closely 
pressed  to  tell  if  a  man  had  fired  the  shot  and  im 
mediately  leaped  on  a  horse  and  hurried  down  the 
road,  going  the  same  direction  he  was  going,  if  he 
would  not  have  heard  him  or  seen  him.  He  an 
swered  by  saying  he  did  not  hear  or  see  any  person 
after  he  heard  the  shot.  Haggard  then  inquired 
if  it  was  possible  for  a  traveler  on  that  road  to  go 
south  from  Thomas'  house  without  traveling  the 
"identical  road  you  were  traveling?" 

"  Yes,  it  is  possible,"  he  had  answered.  "  When 
you  leave  Thomas'  gate  going  south  toward  my 
house,  there  is  a  short  distance  from  Mr.  Thomas' 
gate  a  by-road  that  leads  off  into  some  timber  and 
again  enters  the  main  road  below  my  house.  We 


NISI  PRIUS  145 

use  that  by-road  in  winter,  when  the  main  road  is 
bad." 

"  Would  the  traveler  reach  or  pass  Burnley's 
before  he  reached  this  by-road  ?  " 

"  He  would  not.  If  he  took  the  by-road  he 
would  circle  Mr.  Burnley's  and  would  not  pass  his 
place  at  all." 


CHAPTER  XV 

"  RECALL  Mr.  Burnley,"  said  Henderson,  when 
Dudley  had  concluded. 

"  Mr.  Burnley,  when  you  saw  Dudley  ride  by 
your  gate  on  this  night,  was  there  a  white  dog 
following  him,  or  with  him  ?  " 

"  I  did  not  see  any." 

"  After1  Dudley  passed,  did  you  still  remain  there 
watching  for  foxes  and  thieves  ?  " 

"  I  did." 

"  Did  you  ever  see  a  white  dog  pass  there  on 
that  night?" 

"  No,  sir." 

"  Watching,  as  you  were,  would  you  have  no 
ticed  such  a  dog  had  it  passed?  " 

"  I'm  sure  I  would." 

"  That  is  all,"  by  Henderson. 

"  Wait  just  a  moment,  please,"  said  Haggard. 
"  Either  just  before  or  just  after  Dudley  passed 
your  place  going  toward  his  house,  state  if  any 
other  person  passed  there  that  night  ?  " 

"  I  am  positive  none  did." 

"Stand  aside." 

"  One  moment,"  said  Henderson.  "  Could  a 
man  traveling  horseback  leave  Thomas'  place,  go 
ing  south,  and  go  a  mile  or  two  south  without  pass 
ing  your  place?  " 

"  No,  sir  —  yes ;  I  was  too  fast  there.  A  little 
way  from  Mr.  Thomas'  gate,  south,  there  is  a  by- 

146 


NISI  PRIUS  147 

road  that  goes  off  into  some  timber.  We  call  it 
the  wet  weather  road.  You  can  go  by  that  road 
and  come  out  on  the  main  road  down  below  Dud 
ley's." 

"  Zed  Dance,  please,"  from  Henderson. 

Mr.  Dance  being  duly  sworn,  deposed  that  he 
lived  in  the  Thomas  neighborhood ;  had  lived  there 
many  years;  knew  all  the  parties  in  interest;  re 
membered  the  occasion  of  Mr.  Thomas  being  killed ; 
went  over  to  the  Thomas  place  next  morning 
when  he  heard  of  it.  Replying  to  questions,  he 
said: 

"  I  live  kinder  between  Thomas  and  Burnley, 
south  of  Thomas,  angling." 

"  Do  you  live  on  the  main  road  ?  " 

"  No,  I  live  off  the  main  road  on  a  sorter  by 
road  —  wet  weather  road,  I  call  it ;  leads  off  the 
main  road  near  Mr.  Thomas'  and  runs  by  me,  and 
on  down  further  it  runs  into  the  big  road  again." 

"  Now,  the  afternoon  after  the  night  of  the  kill 
ing,  if  you  found  anything  on  your  place,  just  tell 
about  it." 

"  I  found  a  gun.  I  went  down  into  my  lower 
field  that  lies  on  this  road  —  we  were  talking  of 
fallowin'  for  wheat  land.  Just  over  my  fence,  in 
the  weeds,  as  I  was  walking  along,  I  struck  some 
thing.  I  looked  down,  saw  the  gun,  and  picked  it 
up.  It  was  a  single-barreled  muzzle-loader.  I 
give  it  to  the  county  judge." 

The  gun  was  here  produced  and  identified. 

"  Was  it  loaded  or  empty  when  you  found  it  ?  " 

"It  was  empty  —  just  like  it  is  now." 


148  NISI  PRIUS 

"  Could  you  tell,  from  examining  it,  whether  it 
had  been  recently  fired  ?  " 

"  No,  I  couldn't,  because  it  had  been  pitched 
over  the  fence,  muzzle  forward,  and  the  barrel  had 
stuck  in  the  mud." 

"  Do  you  know  whose  gun  that  is?  " 

"  I've  heard,  but  don't  know  myself." 

"  Ask  him,  gentlemen,"  said  Henderson. 

"  Were  you  asleep  from  ten  to  twelve  o'clock  on 
the  night  of  the  killing?"  asked  Haggard. 

"  I  was  awake  and  up  all  night  —  had  a  sick 
child." 

"  Did  you  hear  or  see  any  person  pass  your  place 
between  those  hours  that  night?" 

"  No,  sir  —  none  at  all." 

"  Do  you  think  you  could  have  heard  had  such 
been  the  case?  " 

"  Looks  like  I  would.  My  house  is  close  to  the 
road.  There's  a  rocky  hill  along  there  and  we  had 
windows  and  doors  open." 

Ben  Hobson,  next  called,  deposed  that  he  con 
ducted  a  little  repair  shop  next  door  to  the  Hanna 
House  and  had  done  so  for  several  years. 

"Do  you  recognize  this  single-barreled  gun?" 

"  Yes,  it  is  my  gun." 

"  Where  did  you  get  it,  and  when  ?  " 

"  About  two  years  ago  I  had  a  bill  for  repairing 
old  uncle  Charley  Judson's  watch  —  he's  the  old 
darkey  that  lives  down  the  street  here.  He  left 
me  the  old  gun  to  pay  the  bill." 

"  Did  you  sell  or  give  the  gun  away?  " 

"  Didn't  do  either." 


NISI  PRIUS  149 

"  How  came  it  out  of  your  possession?" 

"  I  can't  tell  you  to  save  my  life." 

"  When  did  you  first  miss  it  from  your  place?  " 

"  Last  August." 

"  Do  you  recall  the  occasion  of  Mr.  Thomas  be 
ing  killed?" 

"  Yes,  sir." 

"  With  reference  to  that  date,  when  did  you 
miss  it?" 

"  I  missed  it  the  day  he  was  killed.  I  believe  he 
was  killed  on  August  14,  and  I  missed  that  gun 
early  that  day." 

Haggard  declined  to  cross-examine.  He  arose 
and  objected  to  "  all  this  stuff  about  this  gun. 
What  bearing  has  it  on  this  case  ?  " 

"  The  defendant  pleads  not  guilty,"  said  Hen 
derson.  "  Any  fact  tending  to  show  that  Dudley 
did  not  fire  the  shot  is  competent.  Therefore,  it 
follows  any  fact  tending  to  show  that  some  other 
person  fired  the  shot  is  a  fact  tending  to  show  that 
the  defendant  did  not  do  so." 

"  Go  ahead,"  said  Lowden.  "  I'll  have  to  watch 
this  evidence  as  it  comes.  I  can't  pass  on  it  by 
piecemeal.  I'll  control  it  by  instructions,  if  neces 
sary.  Proceed,  gentlemen." 

"  Recall  Mrs.  Thomas,  please,"  said  Hender 
son. 

"  Mrs.  Thomas,  please  describe  the  appearance 
of  the  man  who  came  to  your  husband's  gate  the 
day  previous  to  the  killing  and  there  talked  with 
him?" 

"  I  can  hardly  do  that.     He  was  about  your  size, 


150  NISI  PRIUS 

I  reckon,  middle-aged.  I  remember  he  had  a  dark 
brown  beard.  That's  about  all  I  noticed." 

"  Call  James  Hanna,"  directed  Henderson.  A 
faint  reminiscent  smile  lit  up  the  countenance  of 
Judge  Lowden  —  so  well  and  so  truly  did  he  know 
the  witness  whose  name  had  just  been  called. 

"  Watch  something  drop,"  murmured  Haggard 
to  his  associate.  Hanna  was  pitching  horseshoes 
in  the  court-house  yard.  He  soon  entered,  carrying 
a  sort  of  ledger  under  his  arm.  Was  sworn,  or  at 
tempted  to  be  sworn,  by  clerk,  Tom  New.  Hanna, 
however,  looked  full  at  the  clerk,  knowing  that 
official  so  well,  whereupon  the  aforesaid  New  im 
mediately  became  a  living  illustration  of  the  word 
confusion.  He  pushed  a  large  order  book  off  the 
rail  of  his  apartment  and  concluded  the  perform 
ance  by  swearing  Old  Jim  to  "  well  and  truly  try 
the  issue  joined  between  Dudley  Hanna  and  Hiram 
New,"  etc.,  etc.  Later  when  New  was  joked  for 
his  blunder,  he,  without  hesitation  or  compunction, 
declared  the  proceedings  had  grown  dull  and  he 
really  rendered  the  performance  "  on  purpose  to 
liven  up  things  a  bit." 

"  Mr.  Hanna,  you  conduct  what  is  known  as  the 
'  Hanna  House '  in  this  city,  do  you  ?  " 

"  They  say  I'm  guilty  of  that  charge,"  he  duly 
replied. 

"  Do  you  keep  there  a  hotel  register,  on  which 
your  guests  register  their  names  ?  " 

"  Yes,  sir ;  here  it  is." 

"  Will  you  examine  the  register  on  the  date  of 
August  12  last,  and  see  if  you  had  any  guest  on 


NISI  PRIUS  151 

that  day  who  registered  from  Leavenworth,  Kan 
sas?" 

"  Yes.  Patrick  Dunavan,  Leavenworth,  Kan 
sas.  He  registered  for  lodging  August  12  and 
registered  off  for  the  early  morning  train 
August  15." 

"  Look  and  see  what  room  he  had  ?  " 

"  Number  sixteen." 

"  Were  you  at  that  time  a  regular  subscriber  to 
The  Farmer's  Gazette?" 

"  I  was." 

"  Do  you  know  whether  any  copies  of  that  pe 
riodical  were  in  this  room  number  sixteen  at  the 
time  this  man  had  the  room  ?  " 

"  I  am  sure  there  was,  for  this  reason.  We  al 
ways  let  the  old  papers  and  magazines  accumulate 
at  the  hotel.  They  were  usually  piled  in  a  little 
paper  rack  we  had,  and  that  rack  has  been  in  six 
teen  for  several  years,  and  is  there  now  —  full  of 
such  papers." 

"  Do  you  recall  anything  about  the  personal  ap 
pearance  of  this  man  Patrick  Dunavan  ?  " 

"  Only  this.  He  was  very  dark,  and  I  remem 
ber  thinking  he  was  the  darkest-looking,  queerest- 
talking  fellow  I  ever  met  to  have  the  Irish  name 
—  Pat  Dunavan.  I  know  he  was  not  Irish." 

Hanna  was  not  cross-examined. 

Haggard  was  ignoring  this  line  of  evidence  as 
altogether  too  far-fetched  to  merit  consideration. 

Mrs.  James  was  next  called.  She  testified  that 
she  was  at  the  Dudley  home  the  afternoon  of 
August  14.  She  corroborated  Dudley's  statement 


152  NISI  PRIUS 

regarding  his  bandaged  finger.  She  herself,  she 
said,  had  tied  it  up  with  a  bit  of  dark  calico  while 
Mrs.  Dudley  was  busy  with  the  yarn.  Mrs.  James 
was  over  at  Dudley's  again  the  next  morning  and 
observed  the  same  calico  bandage  on  Dudley's  fin 
ger.  She  joked  him,  so  she  said,  about  having  a 
nurse  who  could  tie  on  a  bandage  that  would  not 
easily  come  off. 

"  What  were  Mrs.  Dudley  and  Miss  Holland  do 
ing  when  you  reached  there  on  the  I5th  —  the 
morning  after  the  tragedy?"  asked  Henderson. 

"  They  were  on  the  kitchen  porch  picking  some 
doves  Hiram  had  killed.  At  least  they  said  he 
had  killed " 

"  Don't  tell  what  they  said,"  interposed  Haggard. 

"  Well,  they  were  picking  doves  on  the  porch." 

Mary  Holland  was  then  recalled.  She  testified 
to  Mrs.  James'  statement  as  to  the  doves,  with  this 
addition  —  she  saw  Dudley  the  evening  before 
when  he  came  from  the  pond  with  the  doves  and 
the  gun.  She  also  corroborated  the  statement  of 
the  defendant  and  Mrs.  James  as  to  the  bandage. 
She  further  swore  that  the  setter  dog  was  in  the 
hall,  asleep  on  the  floor,  when  Dudley  came  home 
the  night  of  the  tragedy.  The  dog  had  growled 
when  Dudley's  steps  were  first  heard  on  the  porch. 
She  had  told  Dudley  that  evening  that  the  Jasons 
wanted  him  to  sit  up  with  Mr.  Jason  that  night. 
Mr.  Crews  had  asked  her  to  tell  him. 

After  a  cross-examination  of  no  importance  Mr. 
Crews  was  called.  The  sheriff  advised  that  Crews 
had  gone  out  in  town,  but  would  return  in  a  short 


NISI  PRIUS  153 

while.  As  it  was  now  past  noon  the  court  took  a 
recess. 

On  reconvening,  Crews  testified  that  he  had  been 
down  at  Jason's  on  the  night  of  the  I3th  of  August. 
When  he  left,  Mr.  Jason,  the  sick  man,  requested 
him  to  ask  Mr.  Dudley  to  come  down  the  next 
night  to  sit  up  with  him.  He  agreed  to  get  him 
word.  Mrs.  Jason  was  not  then  in  the  sick-room, 
but  he,  Crews,  presumed  she  understood  the  mat 
ter.  Crews  further  stated  that  he  saw  Miss  Mary 
Holland  the  next  morning,  the  i/jth,  and  sent  the 
message  to  Dudley  by  her. 

Mr.  Jason,  next  called,  fully  corroborated  Crews 
as  to  telling  him  to  get  word  to  Mr.  Dudley. 

Mrs.  Jason  deposed  that  on  the  afternoon  of  the 
1 3th  Mr.  Grayson  was  at  her  house  to  see  Mr. 
Jason.  When  he  left  she  walked  to  the  yard  gate 
with  him.  They  were  talking  about  Mr.  Jason's 
progress.  It  occurred  to  her,  she  said,  to  arrange 
for  someone  to  sit  up  with  Mr.  Jason  that  night, 
the  1 3th,  and  she  suggested  Mr.  Thomas.  Mr. 
Grayson  replied  that  Mr.  Crews  had  volunteered 
to  come  that  night,  the  I3th.  She  then  told  Mr. 
Grayson  to  see  Mr.  Thomas  and  request  him  to 
come  the  I4th.  He  agreed  to  do  so.  Her  hus 
band  did  not  know  she  had  arranged  for  Mr. 
Thomas  for  the  I4th  and  she  did  not  know  he  had 
arranged  for  Mr.  Dudley  to  be  there.  Mr.  Gray- 
son  had  since  died. 

Henderson  knew  that  Haggard  would  pounce 
upon  this.  He  could  have  had  the  witness  pro 
ceed  further  or  he  could  stop  and  suffer  Haggard 


154  NISI  PRIUS 

to  draw  it  from  her.  He  reasoned,  and  with  man 
ifest  wisdom,  that  a  fact  favorable  to  you  is  more 
potent  if  brought  out  by  your  opponent.  Hence, 
he  turned  the  witness  over. 

Haggard  quickly  seized  the  apparent  flaw. 

"  Mr.  Thomas  did  not  come  to  your  home  on 
that  night,  the  I4th,  did  he?" 

"  No,  sir." 

"  Don't  you  know  he  was  in  his  bed  asleep  and 
had  no  plan  at  all  to  go  to  your  house?" 

"  I  suppose,  from  what  I  have  heard,  he  was 
asleep." 

"  Mr.  Thomas  was  neighborly  enough  to  have 
come,  had  you  sent  him  word  to  do  so,  was  he 
not?" 

"  I  am  sure  he  would  have  come  had  we  wanted 
it.  That  afternoon  my  husband  expressed  pleas 
ure  in  the  expectancy  of  seeing  Mr.  Dudley  that 
night,  whereupon  I  remarked  that  Mr.  Thomas  was 
to  come.  Mr.  Jason  said  he  had  sent  for  Mr.  Dud 
ley.  I  said  I  had  notified  Mr.  Thomas.  Then  the 
mistake  was  first  discovered.  We  then,  as  Mr. 
Thomas  was  so  much  nearer,  sent  him  word  not 
to  come  that  night." 

"  By  whom  did  you  send  the  word  ?  "  asked  the 
nettled  prosecutor. 

"  I  was  then  alone  with  Mr.  Jason  and  there 
was  no  person  by  whom  I  could  send  him  word. 
I  went  out  to  my  gate,  thinking  I  would  wait  until 
perhaps  I  could  send  word  by  some  passer-by. 
Presently  a  stranger  passed,  going  in  the  direction 
of  Mr.  Thomas'.  I  asked  if  he  was  going  that 


NISI  PRIUS  155 

far,  and  he  nodded  his  head.    I  then  sent  the  mes 
sage  by  him.     I  never  saw  him  before  and  haven't 
seen  him  since.     He  was  dark,  wore  a  beard,  and 
I  could  hardly  understand  his  English." 
"  That  will  do,"  said  Haggard. 


CHAPTER  XVI 

HENDERSON  then  proceeded  to  call  a  dozen  men 
of  standing,  by  whom  he  established  his  client's 
reputation  for  peace,  good  order,  and  quietude  in 
his  community.  One  old  farmer,  answering  the 
stereotyped  question,  said,  "  It's  good,  except  when 
he's  riled."  He  was  Henderson's  only  regret  out 
of  the  twelve.  He  then  called  little  John  Dudley, 
the  eight-year-old  lad  who  had  testified  for  the 
State  earlier.  The  boy  gave  a  graphic  account  of 
his  father  killing  the  three  doves.  His  bright, 
cheery  face  captivated  his  auditors  and  his  child's 
prattle  drove  home  unerring  shafts  of  truth.  Hen 
derson  was  so  delighted  with  the  evident  impres 
sion  the  boy  was  making  he  was  loath  to  conclude 
his  examination.  This  was  the  defendant's  part 
ing  shot.  He  was  about  to  close.  All  things,  how 
ever,  must  end  at  one  time  or  another,  and  finally 
Henderson  said,  with  an  I-dare-you-to  expression, 
"  You  may  ask  him,  Mr.  Haggard." 
That  lawyer  was  just  at  that  moment  revolving 
in  his  own  mind  a  sort  of  "  To  be  or  not  to  be  " 
proposition,  and  still  reflected  while  the  boy-wit 
ness  innocently  and  fearlessly  looked  at  him.  Just 
as  Haggard  had  concluded  to  ask  the  question  a 
keg  of  dynamite  or  jug  of  nitro-glycerine  exploded 
—  touched  off  by  a  manifestation  of  tenderness  in 
effable,  found  only  in  childhood.  The  youthful 
witness,  looking  straight  at  Haggard,  said: 

156 


NISI  PRIUS  157 

"  Why  do  you  hate  my  papa  so  hard  ?  "  and  a 
great  glistening  tear  rolled  down  his  ruddy  cheek. 

Haggard,  somehow,  managed  to  say : 

"  Why,  my  little  man,  I  do  not  hate  your  papa." 

"  Papa  said  you  didn't ;  but  you  want  to  send 
him  away." 

"That  is  all,  my  boy;  you  may  go,"  said  Hag 
gard,  and  the  unconscious  victor  went  back  to  his 
father's  side. 

"  The  defendant  will  rest  here,  your  Honor," 
came  from  Henderson.  As  this  valiant  fighter  re 
sumed  his  seat,  he  gave  due  and  devout  thanks  for 
the  creation  of  boys,  and  one  boy  in  particular. 

If  you  who  read  these  pages  have  stood  in  the 
forum  circumstanced  as  was  Henderson,  words  of 
explanation  would  be  as  carrying  coals  to  Newcas 
tle.  As  there  is  a  crest  to  every  wave  in  the  sea, 
a  supreme  height  to  every  storm,  so  there  is  a  su 
preme,  tense,  vital  moment  in  every  great  trial. 
Men  will  ask  how  a  ruddy  cheek,  a  single  sparkling 
tear,  a  child's  voice, —  trivialities  of  no  consequence, 
—  can  bear  heavily  and  irresistibly  in  the  scales  of 
justice.  Psychologists,  not  lawyers,  must  give  an 
swer.  Answer  me  how  the  flash  of  a  leader's  eye 
in  a  twinkling  at  supreme  moments  turns  the  tide 
of  battle  and  makes  a  thin,  wavering  line  an  ir 
resistible,  victorious  legion  of  conquerors? 

Haggard  could  do  battle  with  the  bold  perjurer. 
He  could  tower  high  above  the  overawed  and  cow 
ering  exaggerater.  Easily  he  could  drive  to  quar 
ter  over-ready  witnesses  who  faced  his  iron  visage. 
Past-master  in  repartee,  he  had  grown  accustomed 


158  NISI  PRIUS 

to  vanquishing.  But  now  he  felt  limp  and  help 
less.  He  wondered  if  any  others  observed  it.  One 
did,  and  drank  to  its  depths  that  cup,  aye,  bowl  of 
joy.  The  prosecutor's  listless  form  lay  stretched 
out,  figuratively  speaking,  and  at  least  one  observer 
there  was  —  Henderson. 

But  this  business  of  which  we  write  admits  of 
no  tears  over  spilled  milk.  There  is,  instanter,  an 
other  pail  of  fresh  milk,  as  witness : 

"  Call  Mr.  Jones,"  and  Haggard  was  going  into 
his  rebuttal. 

Jones  denied  the  conversation  with  Dudley,  as 
had  been  detailed  by  the  defendant.  Henderson, 
some  who  w,  had  a  profound  contempt  for  the  afore 
said  Mr.  Jones.  He  fancied  that  Jones  was  swear 
ing  falsely.  Quite  true,  it  was  concerning  a  minor 
matter,  but  this  was  a  case  involving  a  man's  life,  as 
Henderson  reasoned,  and  he  who  would  gratui 
tously  lie  in  such  a  cause  was  a  reptile  to  be 
shunned  by  all  men.  Forgive  the  zealous  lawyer 
if  he  revenged  himself  on  this  witness.  Here  is 
how  he  chose  to  do  it,  simultaneously  impairing 
the  value  of  his  adverse  testimony.  Haggard  con 
cluded  his  examination  of  Jones,  and  said: 

"  Ask  him,  Mr.  Henderson." 

Henderson  made  no  response.  He  had  his  head 
turned  rather  away  from  the  witness,  and  was  ap 
parently  looking  over  his  notes.  He  seemed  not 
to  hear  Haggard.  The  prosecutor  repeated  his 
words,  and  still  Henderson  did  not  hear,  so  occu 
pied  was  he  with  his  notes.  The  Court  then  said 
quite  audibly: 


NISI  PRIUS  159 

"  Mr.  Henderson,  do  you  care  to  ask  the  wit 
ness?" 

"What  witness,  your  Honor?"  thrust  Hender 
son.  "  Oh,  I  beg  pardon !  is  Mr.  Jones  on  the 
stand  again?  I  did  not  know  he  was  testifying. 
What  did  your  Honor  ask  me?" 

"Do  you  care  to  cross-examine  the  witness?" 
replied  the  Court. 

"  Not  at  all,"  and  Henderson  again  went  to  his 
notes,  whereat  the  said  Jones  slunk  away,  feeling 
and  looking  as  if  he  had  cut  but  a  small  figure  with 
his  evidence. 

Haggard  proceeded  to  the  "  gap-filling  "  process, 
and  called  several  witnesses  touching  minor  de 
tails.  Shortly  thereafter,  consulting  his  associate, 
he  finally  closed  the  evidence  for  the  Common 
wealth.  The  defense  had  no  sur-rebuttal  and  the 
court  reporter  put  his  pencils  in  his  pocket  and 
pushed  back  his  small  table. 

Judge  Lowden,  contrary  to  the  wont  and  habit 
of  some  distinguished  jurists  —  who  shall  be  name 
less  here  —  had  his  instructions  fully  prepared  and 
ready  for  the  jury.  They  were  models  of  clear 
ness  and  brevity.  It  is  believed  that  when  a  cer 
tain  Englishman  of  another  age  coined  the  phrase, 
"  brevity  is  the  soul  of  wit,"  he  had  just  heard  a 
court's  charge  such  as  were  the  fashion  in  that 
musty,  cob-webbian  period,  and  he  intended  his 
coinage  as  pointing  a  contrast.  In  Lowden's  court 
the  lawyers  rarely  presented  instructions.  All 
counsel,  somehow,  assumed  that  the  Court  could 
and  would  present  each  of  the  opposing  theories 


160  NISI  PRIUS 

CORRECTLY,,  clearly,  briefly,  a  triangular  consumma 
tion  most  devoutly  to  be  wished  and  always  had  — 
in  this  court. 

We  shall  not  incorporate  all  those  instructions 
in  these  pages.  One  chiefly  interested  Henderson. 

"If  the  jury  have  a  reasonable  doubt  of  the  de 
fendant  having  been  proved  guilty,  they  will  find 
him  not  guilty." 

Need  it  be  said  that  at  this  particular  time  Hen 
derson  had  no  trouble  convincing  himself  that  this 
instruction  was  the  very  basic-stone  of  American 
liberty? 

It  was  determined  to  have  only  one  speech  on  each 
side.  Henderson,  under  a  rule  of  law  obnoxious 
to  defendant's  counsel,  and  thoroughly  sound  to 
the  prosecuting  fraternity,  was  the  first  speaker; 
Haggard,  the  last.  And  this  was  a  danger  to  be 
reckoned  with.  Old  Judge  Cole,  an  ardent  admirer 
of  Haggard's  forensic  powers,  had  often  said 
"  that  closing  argument  of  Haggard's  had  increased 
greatly  the  population  of  two  certain  neighbor 
hoods  not  far  from  the  towns  of  Frankfort  and 
Eddyville." 

Let  the  uninitiated,  however,  bear  in  mind  this 
truth:  the  case  makes  the  speech,  and  a  speech  is 
made  up  of  two  elements  —  logic  and  eloquence. 
While  Haggard  would  have  unlimited  supplies  of 
logic,  Henderson,  who  possessed  an  equal  supply 
of  that  ingredient,  likewise,  by  reason  of  his  case, 
was  surcharged  with  eloquence,  and  he  made  a 
speech  that  afternoon.  The  old  walls,  the  swaying 
trees  outside,  the  honest  old  rafters,  all,  if  to  any 


NISI  PRIUS  161 

extent  animate,  must  have  been  reminded  of  other 
days.  He  argued  the  testimony  from  every  possi 
ble  standpoint;  he  collected  his  facts  and  hurled 
them  at  the  jury  rapidly,  powerfully.  His  rich  and 
mellow  voice  rose  and  fell  as  the  speaker's  needs 
required. 

He  said,  inter  alia,  that  every  mortal  connected 
with  the  case,  with  one  very  small  exception,  had 
his  good  opinion  and  esteem;  that  he  should  not 
attempt  to  discuss  the  witness,  Mr.  Jones.  When 
honest  men  were  engaged  in  a  grave  effort  to  investi 
gate  facts  as  clean,  honest  men  should  do,  the  crawl 
ing  of  a  small  reptile  across  the  floor  should  not 
disconcert  them. 

"  I  shall  not,  therefore,"  he  said,  "  take  your 
minds  from  potent  facts  told  by  clean  people,  by 
so  much  as  referring  to  petty  stuff  manufactured 
by  a  very  petty  person." 

Burnley  had  seen  no  gun  as  Dudley  rode  by;  he 
had  seen  no  dog,  though  on  the  lookout  for  foxes 
and  thieves.  Mrs.  James  and  Miss  Holland  had 
demolished  the  State's  theory  relative  to  the  white 
handkerchief.  Who  was  this  dark  stranger  seen 
talking  to  Mr.  Thomas  the  day  before  the  killing? 
Who  was  the  dark  stranger  who  occupied  room 
sixteen  at  Hanna's  hotel?  He  came  on  August  12, 
and  left  early  the  I5th.  How  chanced  this  shotgun 
to  be  missed  by  Hobson  on  the  I4th?  The  stran 
ger's  room  at  the  hotel  was  where  Hanna  kept  his 
copies  of  The  Farmer's  Gazette.  Thomas  had 
lived  at  Leavenworth,  Kansas.  The  stranger  reg 
istered  from  Leavenworth.  What  did  the  proof 


162  NISI  PRIUS 

show  Dudley  knew  of  any  nine  hundred  dollar 
transaction  with  Thomas? 

And  so  did  Henderson  swing  broadsword  and 
saber  until  the  shadows  began  to  lengthen;  but 
those  within  the  portals  of  that  historic  edifice  did 
not  observe  the  fast-falling  eventide.  The  speaker 
held  them  within  his  grasp  and  played  upon  their 
emotions  and  sentiments  as  upon  a  stringed  instru 
ment.  At  the  termination  of  a  subdivision  of  his 
speech  he  was  reminded  by  the  Court  of  the  late 
hour,  and  court  was  adjourned.  A  night  session 
was  agreed  upon.  Mr.  Henderson  was  to  conclude 
after  supper,  and  after  which  Mr.  Haggard,  for  the 
State,  was  to  close  the  case. 

Accordingly  at  eight  o'clock  the  "  jury  assem 
bled  according  to  adjournment."  The  old  house 
was  packed  fairly  to  suffocation.  Disgruntled 
swains,  as  reward  for  their  thriftiness  in  early  ob 
taining  seats,  gingerly  resigned  them  to  eager  la 
dies.  Dingy  lamps,  now  venerable  in  service,  shed 
a  weird  light,  a  calcium  light,  as  it  were,  upon  the 
actors  in  the  final  act  of  this  drama.  The  jailer, 
classified  by  Judge  Cole  as  "  omnes  omnivirum," 
looked  the  part,  when  he  authoritatively  pushed  his 
way  through  the  mass,  escorting  his  prisoner. 
Clerk  Tom  New,  pencils  and  pens  behind  each  ear, 
dockets,  order  books,  and  file  boxes  all  about  him, 
stood  serene  behind  his  railing.  He  smiled  upon 
a  grateful  and  appreciative  constituency.  Not  con 
tent  with  being  merely  observed,  like  the  Mad 
Prince  in  the  drama,  he  was  satisfied  he  was  "  the 
admired  of  all  admirers." 


NISI  PRIUS  163 

The  Judge  was  on  the  bench.  Dudley  sat  by 
his  wife  and  the  ever-present  boys.  Presently, 
Haggard  and  Henderson  entered,  chatting  pleas 
antly.  People  wondered  how  these  two  could  thus 
lie  down  together  like  the  lion  and  the  lamb 
of  fable.  Mrs.  Thomas  feared  vaguely  that  "  her 
lawyer  "  had  gone  over  to  the  enemy.  Even  Mrs. 
Dudley,  who  considered  Henderson  a  veritable 
Cyclops,  for  an  instant  secretly  questioned  his  sin 
cerity.  Ah,  Public,  do  you  demand  that  we  fight 
always?  But  that  glorious  and  genuine  fellowship 
of  contending  advocates  —  no  matter,  the  story  is 
too  long;  perhaps  you  would  not  understand,  after 
all.  Suffice  it  to  say,  it  has  been  so  since  Moses, 
and  will  continue  until  temples  crumble  and  time 
is  no  more. 

"  Proceed  with  the  argument,"  came  from 
Lowden.  A  glass  of  water,  a  rearranging  of  the 
instructions  and  exhibits,  and  Henderson  was 
launched  into  his  last  effort  for  this  man,  this  wife, 
these  boys.  When  he  had  gone  home  to  his  own 
supper  —  of  which  he  ate  none  —  his  own  bairns 
had  romped  joyously  beneath  his  feet  and  swung 
about  his  great  broad  shoulders.  The  young 
mother  had  met  him  at  the  gate,  the  picture  of 
peace  and  felicity.  They  all  had  sat  under  the 
great  oak  in  the  yard.  The  sun  had  gone  down 
gloriously  behind  the  blue  haze  in  the  distance,  and 
the  soft  June  twilight,  the  freshening  breeze,  the 
very  murmur  of  approaching  night,  had  soothed 
and  rested  him  immeasurably. 

The  children,  his  boys  and  girls,   romped  and 


1 64  NISI  PRIUS 

cheered,  rolled  and  tumbled,  as  free  as  the  passing 
zephyrs  that  made  the  roses  nod.  These  things 
had  stirred  the  man.  Latent  powers  he  knew  not 
of  awoke  within  him.  Dudley's  boys,  somewhat 
like  Demosthenes'  pebbles,  made  an  orator.  Com 
passion  reached  the  depths  of  his  soul,  and  oratory 
is  of  the  soul,  not  mind  nor  heart  nor  body. 

He  had  thrown  off  a  feeling  of  sadness  as  he 
briskly  walked  to  the  court-house.  'He  met  Hag 
gard,  and  they  chatted  pleasantly  about  everything 
—  except  this  case.  When  he  entered  the  court 
room  and  pushed  his  way  through  the  crowded 
aisle  he  at  once  saw  the  anxious  face  of  the 
mother.  She  sat  very  close  to  her  two  sons.  The 
wave  passed  over  him  again.  He  did  not  know 
just  what  it  was  —  fear,  anxiety,  compassion,  hope. 
All  perhaps  contributed  to  that  strange  medley  of 
emotions. 

It  was  thus  the  defendant's  counsel  felt  when 
he  arose.  Is  it  any  wonder  that  he  made  the  great 
est  speech  of  his  career?  During  the  afternoon 
argument  he  had  noticed  two  jurymen  who  paid  him 
no  attention.  They  were  respectful,  but  he  knew 
he  was  making  no  headway  in  that  quarter. 
Their  faces  were  turned  toward  him,  but  they  were 
faces  that,  to  an  experienced  advocate,  plainly 
showed  the  speaker  they  listened  not.  And  now 
they  were  still  oblivious  to  all  his  argument  and 
all  his  appeals.  While  standing  on  his  feet  this 
lawyer  resolved  not  to  sit  down  until  these  two 
should  hear  him.  Thanks  to  his  perseverance  and 
eloquence,  the  tide  eventually  turned.  When  other 


NISI  PRIUS  165 

eyes  were  wet,  one  of  these  loudly  blew  his  nose. 
"  One  of  them,"  reflected  Henderson.  After 
awhile  the  other  leaned  forward,  intent,  rapt,  trans 
fixed,  and  presently,  following  what  lawyers  call 
an  interrogative  argument,  bowed  his  head  in  un 
conscious  assent  to  the  proposition  Henderson  was 
advancing.  "  The  other  one,"  thought  the  speaker. 
He  was  now  about  to  conclude.  This  lawyer 
knew  thoroughly  the  one  great  point  touching  the 
subtle  and  fine  art  of  jury  speaking  —  when  to 
stop.  The  crowd  had  gradually  increased  and 
surged  about  him;  tables,  chairs,  railings,  all  were 
converted  into  seats.  As  he  was  about  to  con 
clude  his  attention  was  attracted  by  something  fall 
ing  at  his  feet.  He  stooped  and  picked  up  Master 
William  Dudley's  cap.  He  turned,  without  ceasing 
to  speak,  as  if  to  hand  the  boy  his  cap.  But  he  did 
not  do  so.  Master  Will  and  Master  John  had  sur 
rendered  their  chairs  long  ago  and  had  climbed  upon 
the  large  table.  It  is  said  that  the  eyelids  of  those 
of  eight  and  six  weigh  more  than  do  ours.  The 
two  boys  were  curled  against  each  other,  fast 
asleep  on  the  table.  A  soiled,  chubby  hand  of 
each  hung  listlessly  over  the  table's  edge.  They 
lay  in  such  position  that  their  faces  were  directly 
toward  the  jury,  and  the  old  lamp,  hung  high  on 
the  post  in  the  center  of  the  bar,  shone  flickeringly 
and  softly  upon  them.  Verily,  it  made  a  picture. 
Henderson,  with  sentences  unfinished,  stood  stock- 
still  and  could  not  take  his  eyes  from  them.  The 
whole  assemblage  was  as  silent  as  the  tomb.  A 
pin  falling  to  the  floor  would  have  been  heard. 


166  NISI  PRIUS 

It  was  a  strange  and  incomprehensible  thing.  Men 
afterward  differed  as  to  the  length  of  time  Hender 
son,  the  jury,  the  judge,  and  the  spectators  on  that 
side  of  the  room  gazed  and  gazed  at  those  long 
lashes,  curling,  brown  tresses,  that  lay  upon  two 
beautiful  brows  of  childhood.  And  while  they 
looked  a  smile  flitted  across  the  face  of  the  younger 
lad  —  such  as  is  common  to  that  age  in  sleep. 

"  Gentlemen,"  finally  resumed  this  human  law 
yer,  "  I  am  done.  I  have  no  words  adequate  to 
thank  you  for  listening  to  me  for  so  long  a  time. 
If  in  your  judgment  I  have  overstepped  the  limits 
and  have  consumed  too  much  of  your  time,  forgive 
me.  This  is  the  supreme  hour  of  my  life.  When 
I  look  at  that  table  there  something  tells  me  that 
a  just  God  will  lead  you.  What  a  picture!  They 
went  fast  asleep  with  their  father's  life  hanging  in 
the  balance.  As  they  sleep  they  trust  in  you.  Ah, 
gentlemen,  one  of  them  asked  me  if  you  men  had 
any  little  boys.  I  thank  God  I  could  tell  him  you 
all  had.  What  a  solace  to  know  that  in  this 
country  the  men  who  try  other  men  charged  with 
crime  must  be  housekeepers!  Time  has  taught  us 
that  fathers  and  husbands  know  all  about  the  pas 
sions,  emotions,  and  sentiments  of  men.  Even  as 
these  lads,  peacefully  sleeping  there,  have  en 
trusted  their  father  to  you,  so  do  I.  No  doubt 
they  are  dreaming  of  the  romp  they  are  to  have 
with  '  Dad  '  to-morrow  at  home.  And  did  you  ob 
serve  one  of  them  smile  in  his  sleep  ?  Did  the  little 
fellow,  in  his  dream,  see  his  great-hearted  father 
entering  his  gate,  once  more  to  grab  him  up  and 


NISI  PRIUS  167 

press  him  to  his  breast?  Perhaps  he  saw  the 
angels  come  down  softly  from  heaven  and  unlock 
his  iron  cage  to  free  him.  Perhaps  "  (one  of  the 
jurymen  had  recently  lost  his  only  boy  —  a  lad  of 
seven  years)  "  some  other  little  boy  yonder  in  the 
heavens  looked  down  and  smiled  upon  him,  and  in 
his  dream  he  heard  the  small  voice  say  '  Don't  fear, 
Will;  there's  one  on  that  jury  whose  heart  is  big 
and  tender  and  kind.'  Oh,  gentlemen,  to  take  this 
man's  life  while  they  sleep  and  dream  and  smile, 
to  roughly  awaken  them  in  a  few  hours,  when  they 
say  '  Where  is  our  father,'  to  reply,  '  We  killed  him 
while  you  slept,'  is  this  the  thing  this  great  and 
powerful  State  demands? 

"  Let  not  my  learned  friend  upbraid  me  on  the 
charge  of  attempting  to  excite  sympathy.  That  is 
not  my  purpose.  I  am  talking  about  the  terrible 
gravity  of  taking  this  innocent  man  forever  away 
from  this  wife  and  these  boys.  I  am  guilty  of 
pointing  out  the  consequences  of  a  mistake  in  your 
verdict  —  not  attempting  to  play  upon  your  sym 
pathies." 

And  so  Henderson  concluded  and  took  his  seat, 
weary,  worn,  and  exhausted. 


CHAPTER  XVII 

IT  were  needless  to  report  in  haec  verba  the  close, 
powerful,  eloquent  argument  of  Ben  Haggard. 
He  was  master  of  satire,  eloquence,  logic,  pathos. 
At  one  time  Henderson  inwardly  trembled,  for  it 
looked  as  though  the  almost  irresistible  prosecutor 
would  sweep  the  jury  from  their  moorings.  With 
consummate  skill  this  veteran  advocate  minimized 
the  strong  points  that  stood  out  in  favor  of  the 
defendant,  and  correspondingly  magnified,  illus 
trated  and  elaborated  the  wonderful  chain  of  cir 
cumstances  favorable  to  the  State.  With  merciless 
sarcasm  he  frequently  referred  to  "  Henderson's 
man  of  straw  from  Leavenworth."  There  was,  he 
said,  the  night  horseman,  the  empty  shotgun,  freshly 
fired;  the  tell-tale  gunwad,  made  with  Dudley's 
newspapers;  the  gun  being  hung  upon  the  wall  at 
midnight,  the  blood-stained  handkerchief,  the  white 
dog  leaping  the  fence  and  following  the  horseman ; 
the  wild  flight  homeward;  the  ill-will  and  threat, 
a  perfect  case  of  the  motive  for  murder,  and, 
lastly,  the  dead  man,  ere  he  died,  calling  Dudley's 
name,  just  as  the  cowardly  shot  was  fired;  to  say 
nothing  of  the  tracks,  footprints  that  the  defend 
ant's  shoes  exactly  fit. 

"  Can  you  twelve  men,"  he  thundered,  "  be 
blinded  to  your  solemn  duty  to  society  and  to  your 
selves,  by  a  reckless,  impassioned  appeal  for  wives 
and  children,  in  no  wise  charged  with  crime  in  this 

168 


NISI  PRIUS  169 

case?  If  that's  to  be  the  ruling  method  in  this 
court,  it  were  well  to  abolish  the  whole  system  and 
go  back  to  the  barbaric  code  of  the  survival  of  the 
fittest,  for  every  assassin,  every  thief,  every  crimi 
nal,  has  a  wife,  a  child,  a  mother,  a  father,  a  sister 
or  brother  or  some  relative  whose  poor  heart  must 
bleed." 

And  Haggard,  fierce,  eloquent,  gentle,  logical, 
swept  on  and  on,  until  it  seemed  to  the  patient  little 
wife  of  the  defendant  that  her  heart  died  within 
her.  Once  she  had  whispered  into  Henderson's 
ear:  "Can  I  make  a  statement  to  the  jury?"  and 
she  scarcely  heard  his  reply,  "  No ;  that  would 
never  do.  Don't  let  all  that  stuff  worry  you." 
Oh,  Henderson,  thou  consoler!  There  was  just 
this  difference  between  the  lawyer  and  the  woman. 
They  had  the  same  degree  of  anxiety,  but  very 
different  powers  of  concealment,  that  was  all. 

Once  Henderson  objected  to  a  certain  line  of 
argument,  and  immediately  regretted  he  had  done 
so.  The  Court  merely  said, 

"  I  think  it  is  responsive  to  the  preceding  argu 
ment." 

Finally,  after  what  seemed  to  Henderson  an  age, 
Haggard  concluded.  The  Court  looked  at  his 
watch.  He  reflected  and  said  to  the  jury : 

"  Gentlemen,  it  is  late.  I  will  not  submit  this 
case  to  you  until  to-morrow  morning." 

Then  followed  an  admonition  to  the  jury,  as 
to  their  course  and  conduct  in  the  interim  —  one 
characteristic  of  this  great,  just,  and  judicial  judge, 
and  one  that  ought  to  be  written  in  the  statute  laws 


1 70  NISI  PRIUS 

of  the  Commonwealth.  Perhaps  (who  knows?) 
Judge  Lowden  had  learned  it  to  be  unwise  and  in 
judicious  to  permit  a  jury  in  a  doubtful  criminal 
case  to  retire  to  the  consideration  of  it  immediately 
following  the  prosecuting  attorney's  closing  argu 
ment.  It  were  more  sane  and  calm  and  judicious 
to  let  them  coolly  consider,  than  to  rush  them  to  a 
verdict  on  the  heels  of  a  powerful  closing  speech. 
So  the  court  adjourned,  the  sleeping  cherubs  were 
awakened,  the  curious  departed,  the  defendant  led 
off  to  jail.  There  on  his  iron  bed,  in  his  iron  cage, 
he  slept  and  dreamed  and  tossed.  His  dreams 
were  alternate  in  extremes.  Once  he  saw  his  home 
—  his  castle :  his  wife,  busy  in  domestic  tasks,  sing 
ing  the  clean  sweet  song  of  labor;  his  ideals,  the 
boys,  rollicking  in  the  irrepressible,  untamed  ardor 
of  their  years,  and  himself  among  them.  Then  the 
incomprehensible  panorama  changed,  and  he  saw 
the  gaunt  outlines  of  a  scaffold.  A  young  man 
was  being  quietly  led  up  its  short,  yet  long,  stair 
way,  while  a  fair  and  beloved  young  woman,  comely, 
pale,  trembling,  supported  herself  clutchingly 
against  one  of  its  columns.  The  sun  was  rising 
and  its  darts  of  gold  lit  up  the  vast  vault  of  God's 
heaven.  Someone  inquired,  and  he  heard  a  voice 
saying,  "  There  is  Dudley,  the  murderer."  Here  he 
had  started  in  his  sleep  and  thrust  out  his  hands. 
They  struck  the  damp  stone  wall  of  his  cell,  and 
he  was  awake,  shivering,  trembling,  great  drops 
of  perspiration  on  his  brow.  He  slept  no  more, 
for  the  gray  light  of  day-dawn  was  stealing  over 
the  earth. 


NISI  PRIUS  171 

O  thoughtful  reader,  let  courts  and  juries  pon 
der  long  and  well  this  soul's  suffering.  Guilty,  his 
suffering  is  immeasurable ;  innocent,  it  is  illimitable, 
boundless,  utterly  hopeless.  The  writer  of  these 
crude  lines  has,  like  you,  stood  before  the  all- 
powerful  twelve  and  demanded  an  eye  for  an 
eye,  a  tooth  for  a  tooth,  a  life  for  a  life;  and 
has  had  such  request  granted;  and  has  seen,  in  the 
cold  gray  dawn,  the  mute  victim,  cowed,  terror- 
stricken,  helplessly  led  to  his  death,  his  quivering, 
wriggling  form  dangling,  jerking,  writhing,  then 
quite  still,  save  for  the  slight  swaying  in  the  soft 
breeze.  The  wise  men  have  not  yet  declared  this 
to  be  a  relic  of  barbarism  —  not  yet.  Perhaps  they 
never  will.  Perhaps  such  is  not  the  case.  Or 
ganized  society,  with  its  complex  and  manifold 
problems,  may  not  be  able  to  survive  without  this 
terrible  weapon  of  self-preservation.  It  would  be 
the  purest  dicta  to  give  expression  here  touching 
such  a  subject. 

Upon  the  reconvening  of  the  court  a  crowd  — 
strange,  curious  morbid  Public  —  was  on  hand 
when  Judge  Lowden  handed  the  jury  the  indict 
ment  and  instructions  and  sent  them  to  a  room  to 
consult  upon  their  verdict.  When  they  had  gone 
the  business  of  the  court  resumed  its  wonted  grind. 
The  very  first  case  called,  an  indictment  for  dis 
turbing  public  worship,  brought  from  Haggard 
his  copyright  phrase,  "  The  Commonwealth  is 
ready,"  and  Tobias  Mathews  called  the  names  of 
not  less  than  forty  witnesses,  more  than  half  of 
whom  (to  the  infinite  surprise  of  the  aforesaid 


172  NISI  PRIUS 

Tobias)  were  absent.  That  versatile  barrister  had 
reason  to  flee  from  the  wrath  that  was  to  come, 
and  while  he  is  laboring  heavily  with  his  affidavit 
for  a  continuance,  let  us  return  to  the  chief  of  the 
causa  celebra  at  this  term. 

Time  wore  on.  Our  curious  Public  thinned  out. 
Predictions  of  an  early  acquittal  and  an  early  con 
viction  were  steadily  merging  themselves  into  the 
belief  that  a  "  hung  jury  "  would  result  in  the  Dud 
ley  case.  Ten  o'clock  came,  and  yet  no  word  from 
the  jury  room.  Eleven  o'clock,  and  still  no  appear 
ance  of  the  jury.  Just  before  the  time  for  the  noon 
adjournment,  while  Captain  Henry  was  gallantly 
and  heroically  demonstrating  that  Doctor  Spruce's 
Green  Bitters  was  not  an  intoxicating  liquor,  ac 
cording  to  an  intelligent  and  sensible  interpretation 
of  his  Honor's  instructions,  the  all-thrilling  tidings 
were  whispered  about  that  the  Dudley  jury  was 
coming  with  a  verdict.  As  if  by  magic,  our  re 
doubtable  and  irrepressible  Public,  come  to  see  the 
wife  faint  or  the  defendant  turn  pale,  had  returned 
to  their  respective  points  of  vantage,  and  with 
bated  breath  watched  the  weary  twelve  file  into 
court.  Captain  Vance,  glasses  on  nose,  white 
paper  in  hand,  led  the  silent,  ominous  procession. 
When  the  jury  had  been  called,  the  Court,  ad 
dressing  Captain  Vance,  said: 

"  Read  your  verdict,  gentlemen." 

Thereupon  the  foreman  readjusted  his  glasses 
and  amid  deathlike  stillness  read : 

"  We,  the  jury,  fail  to  agree.  —  Zed  Vance, 
foreman." 


NISI  PRIUS  173 

Another  admonition,  and  court  took  the  noon  re 
cess.  At  one  o'clock  the  jurors  were  again  sent  to 
their  room.  All  the  long  hot  afternoon  they  de 
bated,  argued,  pleaded  —  with  no  result.  Various 
rumors  were  afloat  as  to  how  "  they  stood  "  —  one 
as  reliable  and  trustworthy  as  another.  Passers- 
by  beneath  their  window  heard,  once,  high  and 
angry  words.  At  five  in  the  afternoon  Judge 
Lowden,  giving  up  hope  of  an  agreement,  had  the 
jury  brought  into  court,  and  inquired  if  there  was 
any  prospect  of  a  verdict.  "  None  whatever," 
spoke  up  two  determined  voices  at  the  same  time, 
and  the  experienced  judge  knew  that  these  two 
men  were  the  leaders  of  the  two  factions  of  the 
jury.  They  were,  then,  with  the  thanks  of  the 
Court,  discharged  "  from  further  consideration  of 
the  case." 

In  thirty  seconds  it  was  known  of  all  men  how 
the  jury  stood  —  six  for  conviction,  six  for  ac 
quittal.  Of  the  former,  two  were  for  the  death 
penalty  and  four  for  life  imprisonment.  So  ended 
the  trial  of  the  Commonwealth  v.  Dudley. 


CHAPTER  XVIII 

THE  aftermath  of  this  case  does  not  concern  this 
chronicle,  but  if  perchance  there  be  those  who  have 
cultivated  an  interest  in  defendant  Dudley,  his 
wife,  and  two  superb  boys,  a  brief  word  of  ex 
planation  touching  the  conclusion  of  this  remark 
able  case  will  not  be  without  interest  to  them. 

At  the  following  October  term  the  case  was  by 
common  consent  continued,  counsel  on  each  side 
feeling  the  utter  impossibility  of  engaging  again  in 
that  titanic  struggle  so  soon  after  the  mistrial.  At 
the  February  term  next  the  long  and  desperate 
struggle  was  renewed  with  redoubled  vigor.  As 
is  quite  frequent,  each  side  had  strengthened  per 
ceptibly.  Each  now  knew  all  the  details  of  the 
other's  theory.  In  the  midst  of  that  raging  battle, 
in  which  victory  wavered  alternately  from  one  side 
to  the  other,  a  strange  and  remarkable  event  oc 
curred  —  abruptly  terminating  the  proceedings. 
It  was  this.  On  the  second  night  of  the  trial  Ben 
Haggard  walked  into  Judge  Lowden's  room  at  the 
Hanna  House,  his  face  whiter  than  Lowden  had 
ever  noticed  it  before.  Dropping  into  a  chair,  he 
handed  an  envelope  to  Lowden,  saying: 

"  The  County  Judge  has  just  come  by  and  given 
me  that  letter,  which  he  received  in  to-night's  mail. 
Read  it." 

Lowden  opened  and  read  these  words: 
174 


NISI  PRIUS  175 

"  LEA  YEN  WORTH,  KANSAS,  Februarys,  18  — 
"  THE  COUNTY  JUDGE, 

"  Greenwood, 

"  Mecklenberg  County,   Ky. 

"My  Dear  Sir:  I  have  just  witnessed  a  sad  and 
melancholy  spectacle  —  one  of  the  strangest  in  my 
long  experience  as  a  priest,  and  was  solemnly  com 
missioned  by  a  dying  man  to  write  to  someone  in 
your  county.  This  morning  I  was  hurriedly  sum 
moned  to  the  Emergency  Hospital  in  this  city, 
being  told  that  a  dying  man  requested  my  presence 
there  immediately.  On  reaching  the  hospital  I  was 
told  that  one  Ricardo  Ferrago  had  been  crushed 
under  the  wheels  of  a  train,  and  had  but  a  few 
hours  to  live.  When  I  reached  the  poor  man's 
bedside,  he  was  in  agony  —  more  the  agony  of  soul 
than  of  the  body.  '  Oh,  holy  father ! '  cried  he,  in 
broken  English,  '  my  soul  is  burning  and  you  can 
save  me.  Will  you  beseech  the  Holy  Virgin  to 
forgive,  forgive,  forgive  ? '  I  calmed  the  dying 
man,  and  prayed  with  him.  I  assured  him  that  ere 
he  faced  the  God  of  us  all  he  should  confess  and 
repent  all  his  sins.  He  said  he  had  sent  for  me  to 
tell  all;  that  he  was  a  murderer,  a  foul,  black, 
cowardly  murderer.  After  this  he  raved  and 
cursed  and  was  quite  delirious.  Suddenly,  how 
ever,  his  full  faculties  were  restored.  He  was 
calm  and  bid  me  sit  on  his  bed  and  hold  his  hand 
while  he  should  relate  his  crime.  Omitting  his 
broken  English,  this  is  the  terrible  confession  he. 
made: 

" '  Holy  father,  may  the  Blessed  Virgin  pity  me 


176  NISI  PRIUS 

and  give  me  strength  to  relate  all  to  you.  I  am  a 
dying  man.  I  can  feel  my  heart's  blood  growing 
less  and  less,  and  before  the  sun  sets  over  there  I 
shall  be  dead. 

"  '  I  killed  a  man.  I  shot  him  down  without 
warning.  I  did  it  for  money — 'all  for  money. 
Years,  years  ago  I  came  to  America  from  my  na 
tive,  sunny  Italy.  They  told  me  money  grew  on 
trees  across  the  sea.  Would  that  I  had  remained 
where  God  placed  me!  After  a  while  I  drifted 
into  Leavenworth.  At  the  house  where  I  lodged 
lived  a  young  man  by  name  of  Jackson  Thomas. 
In  those  days  he  drank,  and  was  wild  and  reck 
less.  I  wras  near  penniless.  A  low  woman  in  the 
house  enticed  us  both  into  her  company.  She 
made  thieves  of  us.  The  three  of  us  planned  to 
rob  a  safe  in  a  store  in  our  neighborhood.  All 
three  of  us  engaged  in  the  robbing.  The  woman 
and  I  were  to  watch  while  Thomas  entered,  ob 
tained  the  money,  and  returned.  He  entered,  put 
the  gold  and  silver  in  his  pockets,  and  when  he 
turned  to  leave  the  safe  he  was  seized  by  the  night 
watchman  and  hurried  to  jail.  We  escaped. 
Thomas  was  loyal  to  us,  and  made  no  mention  of 
any  confederates.  He  was  tried  and  sentenced  to 
five  years'  imprisonment.  All  this  time  we  were 
in  communication  with  him.  Just  before  he  was 
to  be  taken  to  the  prison  the  three  of  us  contrived 
a  plan  for  his  escape.  He  escaped  and  was  never 
captured. 

" '  Thomas  drifted  about  and  finally  settled  in 
Mecklenberg  County,  Kentucky,  near  a  small  town 


NISI  PRIUS  177 

called  Greenwood.  He  prospered,  and  the  woman 
and  I  went  the  other  way.  I  was  desperate  for 
money.  I  heard  from  Thomas,  and  frequently 
made  him  furnish  me  money,  threatening  to  ex 
pose  him  unless  he  did  so.  He  had  married,  had 
a  large  family,  and  was  an  exemplary  man.  We 
blackmailed  him  thus  for  years.  He  protested,  but 
always  paid. 

"  '  Finally  my  troubles  came  thick  and  fast,  and 
my  fruit  business  was  about  to  be  taken  from  me 
and  sold.  It  was  mortgaged  for  nine  hundred  dol 
lars,  and  I  could  not  raise  fifty.  I  wrote  to 
Thomas.  The  woman  —  she  died  six  months  ago, 
rest  her  soul !  —  also  wrote  to  him.  He  refused 
to  answer.  We  wrote  again.  Still  no  answer.  I 
then  in  desperation  went  to  Greenwood,  Kentucky, 
and,  finding  where  Thomas  lived,  went  to  see  him. 
This  was  last  August,  one  year  ago.  He  met  me 
at  the  gate,  but  refused  to  invite  me  into  his  house. 
I  demanded  the  nine  hundred  dollars.  I  begged 
for  it.  I  told  him  if  he  would  only  give  it  to  me 
he  should  never  hear  of  Ricardo  Ferrago  again. 
He  expressed  fear  of  my  presence  in  that  section. 
I  told  him  I  had  registered  under  an  assumed  name 
at  the  hotel,  Patrick  something,  I  forget  now.  All 
my  appeals  were  in  vain.  Finally,  in  desperation, 
I  told  him  I  would  kill  him  if  he  refused  me.  This 
seemed  to  alarm  him.  He  was  so  prosperous  and 
I  so  ill-used,  I  envied  him.  I  hated  him.  I  de 
termined  to  kill  him. 

"  '  I  returned  to  the  hotel.  A  gunsmith  had  a 
shop  adjoining  the  hotel  —  they  connected  in  the 


178  NISI  PRIUS 

rear.  That  same  afternoon  I  was  in  his  shop  and 
priced  a  gun  —  a  one-barrel  shotgun.  The  price 
was  too  high.  I  did  not  have  the  money.  I 
watched  the  smith  when  he  closed  his  shop.  The 
window  was  not  locked,  though  the  door  was. 
Early  in  the  night  I  went  to  the  rear  of  the  shop, 
raised  the  window,  reached  for  the  gun  and  ob 
tained  it,  took  it  to  my  room  and  concealed  it  un 
der  the  bed.  I  then  went  in  search  of  powder  and 
shot  and  caps  —  the  gun  being  a  muzzle-loading 
gun.  Finally  I  found  a  small  grocery  store  and 
made  the  purchase.  Returning  to  the  hotel,  I  told 
the  proprietor  that  I  would  retire.  Reaching  my 
room  I  loaded  the  gun  heavily,  making  the  wad 
with  some  old  newspapers  I  found  in  the  room.  I 
then  stole  stealthily  down  the  back  stairs  and 
hurriedly  walked  in  the  direction  of  the  Thomas 
place.  A  mile  out  of  town  I  passed  a  house  on 
the  road.  A  horse,  saddled,  was  hitched  near  the 
gate.  Seeing  no  person  about,  I  quickly  mounted 
the  horse  and  rode  rapidly  away.  It  was  a  beauti 
ful,  moonlight  night.  Once  I  thought  I  heard 
someone  approaching,  and  I  turned  suddenly  out 
of  the  road  into  some  trees  and  soon  came  to  an 
open  field.  Without  warning,  I  rode  into  a  high 
barbed  wire,  suspended,  and  cut  a  fearful  gash  in 
my  cheek.  I  sat  there,  trying  to  check  the  flow  of 
blood  with  my  handkerchief.  Being  satisfied  the 
other  traveler  had  passed  on,  I  resumed  the  road. 
When  I  reached  Thomas'  place  all  was  quiet  and 
dark  within.  I  dismounted,  tied  my  horse,  and 
went  boldly  into  the  yard.  Some  sheep  or  goats, 


NISI  PRIUS  179 

in  the  yard,  frightened  me,  I  came  upon  them  so 
suddenly.  I  knocked  on  the  door  loudly.  At  first 
I  heard  no  sign  of  life  within.  I  knocked  again. 
Then  I  heard  someone  on  the  inside.  I  saw  a  light 
within.  Thomas'  voice  called  to  know  who  was 
there.  In  a  disguised  voice  I  told  him  I  had  an 
important  letter  for  him.  I  could  see  him  on  the 
upper  stairway  landing.  There  his  candle  went 
out.  He  first  opened  the  main  door  and  later  the 
screen  door.  The  moon  was  now  full  upon  his 
face,  while  it  shone  upon  my  back.  I  said  to  him, 
holding  the  gun  behind  my  back :  "  Emily  and  I 
must  have  the  nine  hundred  dollars  now  —  will 
you  give  it?"  He  cursed  me,  and  was  saying 
something  about  damn  you,  the  woman,  extortion 
and  all !  when  I  drew  the  gun,  put  it  at  his  stomach 
and  fired.  He  fell,  with  a  groan.  I  ran  through 
the  yard,  almost  knocking  down  one  of  the  sheep, 
leaped  the  fence,  mounted  the  horse  and  dashed 
away.  Presently  I  heard  another  rider.  I  turned 
into  a  side  road  and  continued,  hardly  knowing 
where  I  was  going.  Suddenly,  I  realized  I  still 
had  the  shotgun  in  my  hand.  I  hurled  it  over  a 
fence  into  some  weeds.  After  a  little  I  again 
found  myself  on  the  main  road.  I  proceeded 
rapidly  in  the  direction  of  Greenwood.  I  soon 
approached  the  house  where  I  had  obtained  the 
horse.  The  light  was  burning  just  as  when  I 
passed  it  shortly  before.  I  dismounted,  tied  the 
horse  just  as  I  had  found  him,  and  walked  rapidly 
into  the  town,  seeing  no  mortal  on  the  way. 
" '  When  I  reached  the  hotel  I  quietly  entered 


i8o  NISI  PRIUS 

up  the  rear  steps  as  I  had  come  out,  and  was  in 
my  room.  I  left  Greenwood  early  the  next  morn 
ing.  At  St.  Louis  I  saw  in  a  paper  that  Jackson 
Thomas  had  been  killed  the  night  before.  O,  most 
holy  father,  give  me  some  assurance,  some  hope ! ' 
"  And  here  the  dying  man  fell  back  exhausted. 
He  again  revived  and  I  communicated  all  to  the 
chief  physician.  He  suggested  that  the  dying  man 
sign  an  affidavit,  swearing  to  these  statements.  A 
notary  public  was  obtained  and  the  affidavit  made. 
I  enclose  it  to  you,  as  also  a  copy  of  the  Times,  in 
which  you  will  see  a  full  account  of  all  the  long 
terrible  story.  Ferrago  could  not  indicate  to  whom 
these  papers  be  sent,  so  the  notary  and  Dr.  Mea- 
champ  suggested  you  as  the  proper  official  with 
whom  to  communicate.  Respectfully, 

"  Your  obedient  servant. 

"JOHN  O'MARA/' 

Judge  Lowden  read  this  document  eagerly. 
He  then  read  the  enclosed  affidavit  and  newspaper. 

"  I  cannot  say  that  I  am  greatly  surprised,  Ben," 
said  he. 

Haggard  was  silent.  He  finally  arose,  took  the 
letter  and  contents,  put  on  his  hat  and  started  to 
the  door. 

"Where  are  you  going?"  asked  the  judge. 

"  First,"  answered  the  iron  prosecutor,  "  I  am 
going  to  Tom  Henderson's  office,  and  then  he  and 
I  are  going  over  to  the  county  jail."  And  he  passed 
through  the  door. 

And  in  after  years  in  Mecklenberg  County  Ben 


NISI  PRIUS  181 

Haggard  had  difficulty  in  convicting  on  circum 
stantial  evidence.  To  this  day  lawyers  are  heard 
to  say,  "  Why,  gentlemen,  lots  of  you  recall  the 
Dudley  case,  —  a  stronger  case  than  this,  by  far, 
—  yet  he  was  absolutely  innocent.  It  is  better  that 
ninety  and  nine  guilty  men  escape  than  that  one 
innocent  man  be  convicted." 


CHAPTER  XIX 

SUNDAY  came.  Judge  Lowden  and  Haggard  went 
to  their  homes,  as  did  the  jury.  The  old  temple, 
silent,  grim,  historic,  gave  out  no  sound,  as  Green 
wood's  citizenry  wended  their  ways  to  church  on 
that  Sunday  in  June.  A  rumor,  which  had  gained 
more  than  mere  current  report,  had  been  afloat  of 
late,  in  which  one  of  our  acquaintances,  to  wit, 
Judge  Cole,  took  more  than  a  passing  interest. 
The  busy  dame  had  it  that  the  redoubtable  Cole 
was  about  to  be  "  churched."  Now,  for  the  bene 
fit  of  those  unenlightened  persons,  —  of  whom  there 
are  a  few  in  this  world,  —  it  is  possibly  quite 
essential  to  define  just  what  that  term  signified. 
To  be  "  churched  "  was  to  be  excommunicated ;  to 
be  formally  charged,  tried,  condemned.  The  juris 
diction  of  the  tribunal,  which  was  both  exclusive 
and  comprehensive,  covered  any  and  all  cases  of 
heresy,  schism,  disloyalty,  and  that  broad  category 
of  offenses  which  for  want  of  specific  title  in  state 
craft  is  generally  described  as  lese  majesty. 

Judge  Cole,  whose  spiritual  privileges  were  now 
in  jeopardy,  had  not  been  disturbed  by  the 
threatened  trial.  His  constitutional  right  of  free 
speech  was  at  stake,  and  he  despised  the  "  he  who 
fights  and  runs  away  "  idea.  Now  the  particular 
offense  charged  against  him  was  the  use  by  him 
of  certain  language  in  a  recent  address  to  a  certain 
jury  in  defense  of  a  client  accused  of  vending 

182 


NISI  PRIUS  183 

liquor  in  prohibition  territory.  A  certain  God 
fearing  parson,  who  had  espoused  the  cause  of 
the  prosecution  and  had  given  it  substantial  aid  in 
convicting  the  defendant,  had  been  rather  liberally 
cauterized  by  Cole  in  his  speech.  He  had  been 
grossly  affronted  by  such  phrases  in  Cole's  speech 
as  "  a  long-nosed  parson,  with  his  affidavit  face, 
buttin'  into  this  case,"  and  "  this  preacher,  instead 
of  proclaiming  the  gospel  from  the  highways  and 
by-ways,  is  seen  to  rush  down  to  the  footlights 
and  fire  off  his  horse  pistol,  to  the  disgust  of  jus 
tice-loving  men  and  the  chargin  and  lasting  morti 
fication  of  his  flock."  A  third  specification  ap 
peared  in  the  charge.  Not  content  with  uttering 
these  un-Christian  comments,  the  accused  had 
hurled  satire,  invective,  and  abuse  at  the  meek  and 
righteous  man.  His  aphorism,  "  the  ministry 
throwing  itself  into  the  scales  of  Justice,  thereby 
tipping  same,"  constituted  no  minor  portion  of  the 
advocate's  many  offenses. 

But  the  deponent  who  instigated  these  proceed 
ings  had  reckoned  without  his  host.  It  had  not 
been  intended  to  really  try  the  culprit.  It  was  a 
measure  conceived  to  overawe  the  accused,  and 
to  extract  an  apology  coupled  with  assurances  of 
future  good  behavior.  The  arrow  fell  wide  of  its 
mark.  Not  only  was  Cole  thoroughly  unintimi- 
dated,  he  was  ready,  willing,  and  anxious  for  the 
fray.  He  was  a  member  of  the  bar;  he  had  been 
engaged  in  defending  a  client;  his  accuser  had  de 
scended  from  his  lofty  eminence  and  had  become  a 
runner  for  the  Commonwealth.  In  addressing  the 


184  NISI  PRIUS 

jury,  he  had  exercised  his  inalienable  and  constitu 
tional  right  of  free  speech,  and  had  called  a  spade 
a  spade.  His  personal  liberty,  no  less  than  his 
professional  usefulness,  was  thus  assailed.  He 
would  show  one  parson  whom  he  had  tackled.  He 
would  appeal  to  the  freemen  in  the  congregation. 
If  the  worst  came  to  the  worst,  there  were  other 
churches.  Since  he  had  heard  of  the  impending 
trial,  he  had  at  once  addressed  a  letter  to  the 
offended  man  of  cloth,  —  who  resided  out  in  the 
country,  —  from  the  tenor  of  which  communication 
that  individual  readily  saw  he  had  stirred  up  the 
proverbial  hornets'  nest.  It  ran  thus: 

"  JOHN  COLE, 
"  Attorney  and  Counselor  at  Law. 

"  Collections  a  specialty. 
"  Official  Attorney  for  Sheriff. 

"  GREENWOOD,  KY. 
"  REV.  (?)  HENRY  STOUT, 

"  Bremen,  Ky. 

"  Sir  —  My  attention  has  been  called  to  a  plan  of 
yours  to  have  me  churched  because  I  saw  my  duty 
and  done  it.  You  are  hereby  informed  that  I  will 
be  at  the  churching  to  seize  the  glove  you  have 
thrown  down.  Please  be  on  hand  yourself. 

"  Yours  truly, 

"  JOHN  COLE. 
"  P.  S.  —  Don't  fail  to  be  on  hand  yourself." 

On    receipt    of    this    brief    communication    the 


NISI  PRIUS  185 

Reverend  Mr.  Stout,  misnamed  by  one  of  those 
frequent  vagaries  of  nature,  promptly  decided  not 
to  be  on  hand  himself.  Well  did  he  know  the 
fierce  debating  powers  of  Attorney  Cole.  His 
faint  heart  quailed  at  the  thought  of  having  that 
gentleman's  bent  ringer  shaken  in  his  face  while  his 
terrible  voice  thundered  at  him. 

On  this  Sunday  morning  we  again  meet  our  old 
acquaintance,  Morbid  Public.  He  has,  to  be  sure, 
heard  of  the  prospective  thrilling  proceedings,  and 
has  turned  out  en  masse  to  witness  the  event.  It 
was  known  of  all  men  that  Cole,  J.,  had  the  habit 
of  giving  a  Roland  for  an  Oliver.  Marcellus 
Jumpus  had  often  ventured  the  assertion  "  that  old 
Cole  could  speak  his  way  out  of  hell."  Only  once 
had  his  roaring,  ear-splitting  oratory  met  with  a 
terrible  end.  That  was  recalled  by  everybody 
about  the  court-house. 

Judge  Lowden  had  delivered  that  blow.  Cole 
had  been  aiding  the  prosecution  in  a  certain 
criminal  case.  A  verdict  of  guilty  had  been  ren 
dered.  Defendant's  attorney  had  argued  his  mo 
tion  for  a  new  trial.  Cole  was  replying.  He  had 
spoken  two  hours  and  had  advanced,  by  slow  de 
grees,  on  to  the  Court  until  his  outstretched  finger 
almost  touched  Judge  Lowden.  His  voice  was 
high.  He  yelled  and  stamped  and  perspired,  and 
his  black  eye  glared.  There  was  some  question 
relative  to  misconduct  of  one  of  the  jurymen,  in 
which  the  opposing  counsel  was  in  some  way  in 
volved.  Cole  had  reserved  this  for  his  conclusion. 
He  intended  to  deal  "  seriously,  but  frankly  "  with 


i86  NISI  PRIUS 

the  defendant's  attorney.  And  here  is  how  Judge 
Lowden  "  squelched  "  him,  as  Jumpus  said : 

Spoke  Judge  Cole: 

"  Now,  your  Honor,"  he  fairly  roared,  "  I  am 
about  to  conclude.  Shall  the  wheels  of  justice  be 
come  clogged  up  for  such  a  trivial  matter?  And, 
sir,  I  now  come  to  a  point  in  this  case  directly  con 
cerning  this  defendant's  attorney  —  a  point,  sir,  I 
would  fain  omit " 

"  Suppose  you  just  omit  it,"  came  from  Judge 
Lowden,  in  a  quiet  voice. 

Jumpus  used  the  only  word  when  he  said  Cole 
was  "  squelched."  He  stopped,  stared,  gulped,  his 
tongue  froze.  In  short  and  in  fine  he  was  literally, 
actually,  indubitably  squelched. 

Our  Public  on  that  Sunday  morning  saw  Judge 
Cole  enter  the  church.  He  was  a  prince.  Freshly 
shaven,  his  mustache  cropped  a  little  closer  than 
usual,  to  give  him,  no  doubt,  a  fiercer  look,  he  wore 
his  frock  coat.  Its  tails  were  stiff  from  lack  of 
use  and  insisted  on  standing  out.  The  garment 
was  buttoned  in  front.  He  carried  his  cane  in 
one  hand,  while  the  other  he  kept  palm  inward,  in 
his  bosom.  He,  with  characteristic  good  judgment, 
waited  until  the  building  had  filled  ere  he  made  his 
entrance.  Then  he  entered.  With  dignity  inde 
scribable  he  walked  down  the  aisle  and  took  a  seat 
at  the  very  front.  Those  who  knew  him  could  de 
tect  fire  in  his  eye  and  a  speech  —  a  Cole  speech  — 
fairly  oozing  from  his  pores.  There  he  sat  in  the 
proud  consciousness  experienced  by  every  general 
who  routs  his  foe.  The  Rev.  Mr.  Stout,  as  Cole 


NISI  PRIUS  187 

said  afterward,  "  failed  to  come  to  the  scratch," 
and  there  was  no  opening  of  the  floodgates  of  his 
pent-up  oratory. 

And  this  is  how  it  happened  that  John  Cole, 
Esq.,  —  attorney  and  counselor  at  law,  collections 
a  specialty;  official  attorney  for  sheriff,  was  not 
churched.  This  narrative  undoubtedly  suffers  by 
the  not  in  that  line,  as  things  of  interest  would 
then  and  there  have  transpired.  However,  as  truth 
is  mightier  than  fiction,  and  as  departures  in  plead 
ing  are  to  be  condemned,  the  actualities  only  are 
related. 


CHAPTER  XX 

MONDAY  came,  the  tenth  of  June,  the  seventh  day 
of  court.  Lowden  and  Haggard  again  rode  up 
the  main  street  in  the  old  carry-all.  Hanna  met 
them  just  as  he  had  done  the  Monday  previous. 
The  old  bell,  through  the  scrupulous  promptitude  of 
Uncle  Toby,  again  gave  notice  that  "  cote  was 
settin'."  The  criminal  docket  was  not  yet  finished, 
hence  Haggard's  return  with  Judge  Lowden. 
There  were  several  criminal  cases  to  be  disposed 
of,  motions  for  new  trials,  two  bills  of  exception 
in  which  the  State's  counsel  was  interested,  to  say 
nothing  of  quite  a  number  of  indictments  to  be 
drawn. 

The  court  convened  and  the  case  of  Common 
wealth  v.  Gaines  was  first  called.  Mr.  Blontz, 
hailing  from  another  county,  announced  that  he 
represented  the  defendant.  Now  Lawyer  Blontz 
was  a  lawyer.  He  was  thick-set,  wore  glasses,  and 
looked  at  one  with  a  vacant,  hopeless  kind  of  gaze. 
Providence  in  the  divine  division  of  things  had 
allotted  to  Blontz  a  double  portion  of  self-assur 
ance;  but  by  a  singular  oversight  had  neglected  to 
supply  a  commensurate  amount  of  gray  matter. 
It  therefore  allowed  that  the  Hon.  Blontz  pos 
sessed  all  the  outward  and  visible  signs  of  a  lawyer 
without  in  the  least  being  the  owner  of  any  quali 
fications  even  tending  in  that  direction.  Another 
singular  feature  in  the  make-up  of  Blontz  that  is 

188 


NISI  PRIUS  189 

worthy  of  mention,  was  that  while  all  mankind 
knew  his  professional  limitations  and  shortcomings, 
he  himself  lived  in  blissful  ignorance  thereof  and 
reveled  in  the  sweet  belief  that  he  was  the  ablest 
of  advocates,  the  shrewdest  of  attorneys,  the  wisest 
of  advisers.  It  need  not  be  added  that  he  was  the 
happiest  of  men.  Self-satisfaction  dulls  the  edge 
of  discontent  and  makes  men  merry  despite  any 
and  all  other  environments  and  conditions. 

So  then,  patient  reader,  Mr.  Blontz  was  there 
in  court,  looking  as  wise  as  a  tree  —  nay,  a  forest  — 
full  of  owls.  He  looked  hard  at  you  and  straight 
at  you,  but  his  gaze  was  vacant  and  the  luster  in 
his  luminous  expression  gave  token  of  no  single 
idea.  Gaines,  his  client,  charged  with  selling 
liquor  in  prohibition  territory,  sat  admiringly  hard 
by,  and  feasted  his  dull  eyes  upon  the  great  man, 
his  attorney.  Ah,  lawyer  who  reads  these  pages, 
do  not  mock  your  brother  Blontz.  Like  him,  you 
number  clients  who  place  you  on  a  pedestal.  You 
are  catalogued  with  Justinian,  Blackstone,  Mar 
shall,  Webster,  Evarts,  until,  until  you  try  your 
client's  causes  and  —  lose. 

Now  defendant  Gaines,  himself  an  ox,  dully 
stared  at  his  great  lawyer.  He  was  destined  to  ex 
perience  even  a  greater  awe  and  admiration  shortly. 
Blontz  arose.  He  adjusted  his  glasses.  He  took 
up  the  indictment.  His  deliberation  was  pro 
nounced.  Perhaps  it  was  exceeded  by  his  absolute 
confidence  in  his  infallibility. 

"  I  desire  to  file  a  demurrer  to  this  indictment," 
he  said,  much  after  the  manner  of  Lord  Eldon 


190  NISI  PRIUS 

delivering  a  decree.  The  Court  took  the  indict 
ment.  Judge  Yust,  who  was  sitting  on  the  bench 
with  Judge  Lowden,  asked  the  Judge  in  a  whisper, 

"What  is  his  point?" 

"  He  hasn't  the  least  idea  in  the  world,"  replied 
the  Court. 

"  What  is  the  point  of  your  demurrer,  Mr. 
Blontz  ?  "  inquired  the  Court. 

Blontz  arose,  read  the  indictment  aloud,  and 
gave  this  specific  and  altogether  definite  reply: 

"  Your  Honor,  the  indictment  fails  to  state  a 
public  offense." 

"  In  what  particular  ?  "  pursued  the  now  relent 
less  Lowden. 

"  It  fails  to  give  the  exact  date  of  the  sale.  The 
blank  day  of  March  don't  mean  anything.  That 
might  be  another  sale  than  the  one  the  grand  jury 
indicted  him  for,"  and  Blontz  proceeded  to  assign 
numerous  other  equally  as  conclusive  and  lucid 
grounds  in  support  of  the  demurrer.  When  he  had 
concluded,  the  Court  inquired  if  he  had  any  other 
reasons  to  suggest ;  to  which  he  replied  in  the  nega 
tive.  Judge  Lowden  then  ruled  thus  on  the  de 
murrer  : 

"  None  of  the  points  suggested  by  Mr.  Blontz 
on  his  demurrer  are  tenable.  The  indictment  is  not 
bad  on  demurrer  for  any  of  those  reasons.  It  is, 
however,  fatally  defective  in  that  its  allegations  re 
lating  to  the  local  option  law  being  in  force  are  in 
praesenti.  It  avers,  in  substance,  that  this  defend 
ant  sold  liquor  in  this  county,  where  the  local  op 
tion  law  is  in  force,  whereas  it  should  be  charged 


NISI  PRIUS  191 

that  the  law  was  in  force  at  the  time  the  sale  was 
made.  Let  the  demurrer  be  sustained,"  and  Hag 
gard  was  listening  to  the  County  Attorney's  ex 
planation  of  why  the  indictment  was  so  clumsily 
drawn. 

"  That  is  all,  Mr.  Gaines ;  you  may  go  now," 
said  Blontz  to  his  admiring  client.  And  Blontz 
and  Gaines  were  seen  to  leave  the  court-room  to 
gether,  contented. 

"  How  did  you  get  it  throwed  out?"  asked  the 
merry  defendant  of  the  merry  lawyer  as  they 
crossed  the  court-house  yard,  the  one  fairly  bask 
ing  in  the  effervescing  joy  of  the  other. 

"Easy,  Gaines,  easy,"  said  Blontz,  as  he  wisely 
winked  one  of  his  eternally  vacant  eyes.  "  These 
Greenwood  fellows  don't  know  the  tricks.  A  little 
technicality  that  I  don't  use  except  when  necessary. 
When  you  get  in  that  court-room  you  have  to  work 
this  thing,"  and  he  tapped  his  head  with  his  finger. 

"  Damned  if  you  ain't  a  wheel-horse,  and  that's 
no  mistake,"  said  Gaines,  and  he  paid  his  fee  to  his 
lawyer,  while  the  Mecklenberg  County  grand  jury, 
to  whom  the  indictment  had  been  re-referred,  was 
finding  a  new  indictment,  without  the  defect  and 
from  the  toils  of  which  even  the  admired  Mr. 
Blontz  could  not  extricate  the  subsequently  skep 
tical  Gaines. 


CHAPTER  XXI 

LOWDEN  suffered  a  sigh  of  relief  when  he  closed  the 
Commonwealth's  docket  and  called  for  the  com 
mon  law  docket.  The  criminal  session  had  not 
been  without  interest,  but  to  this  seasoned  and  ex 
perienced  jurist  the  average  criminal  case  was  a 
bore.  With  the  criminal  business  concluded,  our 
old  friend  Morbid  Public  disappeared.  The 
benches  of  the  temple  were  empty,  nor  could  a  civil 
cause  of  gigantic  importance  entice  them  thither. 
Tears,  pale  faces,  weeping  widows,  tales  of  pistol 
and  dagger,  and  the  flowing  of  life  blood  —  these 
all  went  out  one  door  while  Morbid  Public 
evacuated  through  another.  And  now  the  court 
went  about  its  business  uninfluenced  by  the  ap 
proving  or  disapproving  laugh  or  smile  or  look  or 
frown  of  many  non-discriminating  on-lookers. 

An  appealed  case  involving  all  the  thrilling  de 
tails  betwixt  a  landlord  and  his  tenant  over  their 
respective  shares  in  a  small  crop  first  obtained  the 
right  of  way.  Cole,  for  the  tenant,  stormed  a 
great  deal  about  "  honest  sweat,"  "  horny  handed 
laborer,"  "  up  with  the  sun,"  "  humble,  helpless  in 
a  pitched  battle  with  a  landed  nabob."  Captain 
Henry,  noting  about  nine  land-owners  on  the  jury, 
was  fluent  touching  "  trifling  tenants,"  "  shirking 
croppers,"  "  necessity  for  business  methods  on  the 

192 


NISI  PRIUS  193 

farm  " ;  and  so  the  mill  ground  merrily  on  through 
out  that  afternoon  in  June  and  the  landlord-tenant 
cause  was  concluded. 

An  action  in  ejectment  was  begun  and  con 
cluded  —  soon.  Tobias  Mathews  stood  sponsor 
for  the  plaintiff.  Brownlow,  for  the  defendant, 
had  contented  himself  with  merely  filing  a  traverse 
of  the  petition,  denying  in  toto  the  plaintiff's  title. 
Of  all  the  weapons  in  the  vast  armory  of  the  law 
a  simple  traverse  by  the  defendant  in  an  action  in 
ejectment  is  the  most  valuable.  Doubtless  it  has 
won  more  battles  than  all  the  warriors  from 
Alexander  to  Grant. 

Brownlow  had  filed  it  and  kept  his  peace.  He 
sat  reposing  in  his  chair  watching  Mathews  very 
much  after  the  fashion  of  an  Indian  chief  behold 
ing  a  captive  run  the  gauntlet.  The  unconscious 
Mathews,  all  smiles,  bustled  hither  and  thither, 
speaking  to  witnesses,  carrying  deed  books,  con 
sulting  his  client.  The  trial  proceeded  rapidly 
enough  until  Mathews  reached  the  4o's.  Here 
were  breakers  ahead,  but  the  oblivious  Mathews,  as 
blind  as  the  very  goddess  at  whose  shrine  he  wor 
shiped,  stalked  confidently  and  merrily  along. 
Abruptly  and  without  warning  the  ice  grew  thin. 
It  snapped,  opened,  and  the  icy  waters  engulfed 
the  unsuspecting  youth  ere  he  was  aware  of  his  fate. 
Yet  he  bobbed  up  smiling,  nothing  daunted.  While 
the  Court  was  waiting  a  verdict  for  the  defendant 
to  be  signed  by  the  jury,  having  sustained  a  motion 
for  a  peremptory  instruction,  Mathews  smiled  in 
all  directions.  As  Judge  Cole  was  passing  out  the 


194  NISI  PRIUS 

door  Colonel  Stevens,  whom  he  met,  inquired  what 
the  court  was  engaged  in. 

"  Puttin'  Mathews  on  the  cooling  board  just 
now,"  said  Cole.  "  They  were  trying  to  try  a  land 
case.  Brownlow  denied  Mathews'  title,  and  Ma- 
thews  didn't  hold  out  for  the  second  quarter.  He 
took  a  balloon  ascension,  soared  and  soared,  col 
lapsed,  and  then  hit  the  ground  like  a  thousand 
brick,  still  grinnin'.  Damned  if  I  believe  he  knows 
it  yet.  Got  down  to  1844,  struck  a  snag,  grinned, 
gulped,  and  died,  but  still  grinnin',  "  concluded  the 
critic,  as  he  passed  out  to  a  cane  bottom  chair  un 
der  the  shade  of  a  great  tree,  and  there  resumed 
one  of  his  chief  occupations  —  sitting  down. 

That  night  as  Lowden,  Haggard,  Henderson, 
and  Jim  Hanna  sat  on  the  pavement  in  front  of 
the  Hanna  House,  Mathews  joined  the  group. 
He  said  he  had  entertained  Brownlow  for  a  while, 
anyhow.  He  couldn't  understand,  he  said,  the  jus 
tice  of  the  rule  of  law  that  required  his  client  to 
prove  a  title  from  the  Commonwealth  down, 
"  while  the  defendant  just  sits  there  and  don't  even 
open  his  mouth;  and  if  I  fail  anywhere  along  the 
line  out  I  go,  although  my  man  has  a  deed  to  the 
land." 

"  Well,  you  see,  Tobe,"  said  Hanna,  "  we  have 
to  have  rules  and  regulations  about  this  law  busi 
ness.  We  can't  just  turn  a  fellow  like  you  loose 
up  there  and  let  you  run  wild.  Rules  and  regula 
tions  are  as  necessary  up  there  as  they  were  to  old 
man  Bulcher.  Judge,"  brightened  up  Old  Jim, 
"  have  you  ever  heard  that  story  about  old  man 


NISI  PRIUS  195 

Blucher's  rules  and  regulations?  You  know  old 
Blucher?" 

"  Oh,  yes,  quite  well,"  replied  Lowden,  at  once 
banishing  the  wise  or  unwise  rule  governing  actions 
in  ejectment  and  lighting  a  fresh  cigar  in  anticipa 
tion  of  Hanna's  story. 

"  Well,"  began  that  rare  and  versatile  genius, 
"  old  man  Blucher,  you  know,  loves  what  we  some 
times  call  the  coin  of  the  realm.  You  may  have 
known  men  who  sorter  loved  it,  but  when  it  comes 
down  to  real  love,  Mr.  Blucher's  affection  for  the 
dollar  is  in  a  class  all  by  itself.  And  then  he  is  a 
very  pious  man  too.  He  was  in  the  Civil  War, 
enlisting  in  some  Yankee  regiment,  like  nearly  all 
these  infernal  Republicans  did  around  here.  The 
old  man  don't  believe  in  fightin'  much.  It's  not  his 
line.  He  says  the  war  was  the  roughest  thing  you 
can  imagine.  Just  the  other  day  there  was  some 
thing  in  the  paper  about  little  old  fightin'  Joe 
Wheeler,  and  old  man  Blucher  told  me  all  over 
again  his  story  about  rules  and  regulations.  I  call 
it  that,  but  he  doesn't.  I'm  going  to  give  it  to  you 
just  like  he  gave  it  to  me. 

"  '  Jimmie,'  he  says  to  me,  says  he,  '  I  see  they 
are  praisin'  up  General  Joe  Wheeler  a  powerful 
lot  in  the  papers.  That's  all  wrong.  I  never  did 
like  General  Wheeler.  He  was  the  roughest,  most 
reckless  man  I  ever  saw.  In  a  battle  he'd  just 
simply  run  over  you,  if  you  didn't  get  out  of  his 
way.  The  man  wouldn't  stop  to  think  nor  nothin' ; 
but  would  come  at  you  like  a  cyclone,  pell  mell. 
Reckless,  Jimmie,  awful  reckless. 


196  NISI  PRIUS 

" '  You  know,  Jimmie,  I  went  into  the  army 
when  I  was  a  young  man.  Things  were  all  upset, 
and  I  thought  it  would  be  a  good  opportunity  to 
make  a  little  money.  You  know  soldiers  are  reck 
less  and  wild.  They  don't  pay  any  attention  to 
economy  or  business  or  saving  their  money,  and 
when  they've  got  the  money  they  pay  high  for 
things.  Well,  I  had  saved  some  money  and  so  I 
went  in.  It  was  awful  rough.  Soldiers  would 
curse  and  drink;  didn't  make  any  difference  if  there 
was  to  be  a  battle  next  day.  You  never  saw  so 
many  reckless,  wicked  men. 

"  *  I  thought  so  long  as  I  wasn't  making  any 
money  except  my  pay,  I  might  try  to  make  a  little 
extra  money.  I  got  a  small  camp  stove  that 
kinder  folded  up.  I  could  carry  it  around  with  me 
handy.  Whenever  we'd  pitch  camp  I  would  get 
out  and  buy  some  meal  and  cook  corn-cakes  and 
sell  them  to  the  soldiers.  It  was  a  fine  chance  to 
do  business.  Rations  to  men  was  always  short, 
and  when  they  had  money  I  could  get  sometimes 
five  cents  for  a  corn-cake.  They  would  smell  the 
cakes  cookin'  on  my  stove  and  pay  me  most  any 
price.  Lots  of  times  they  wanted  to  buy  my  cakes 
on  credit,  and  once  I  let  a  fellow  have  two  and 
trusted  him  for  the  pay.  He  never  did  pay  me  for 
those  two  cakes,  and  I  stopped  the  credit  business. 
You  know,  Jimmie,  it  ain't  business,  and  you've 
got  to  have  rules  and  regulations  in  business.  So 
I  told  the  boys  that  I  couldn't  sell  my  cakes  with 
out  the  money.  On  pay-days  I  made  a  lot  of 
money,  and  saved  it  all.  Once  I  thought  some 


NISI  PRIUS  197 

soldiers  intended  to  get  into  my  knapsack  and  take 
my  money,  and  I  kept  awake  three  nights  watching 
it.  You  know,  Jimmie,  I  had  to  be  careful  among 
all  those  wild  fellows.  I  tried  to  talk  religion  to 
a  big  fellow  once  and  asked  him  to  join  me  in 
prayer.  He  said  he  would  if  I  would  sell  him 
some  cakes  on  credit.  Of  course,  I  couldn't  do 
that.  You  have  to  have  rules  and  regulations 
about  business,  and  if  I  had  sold  him  my  cakes  on 
credit  he  might  have  got  killed  in  the  next  battle, 
and  where  would  I  have  gotten  my  pay  ?  This  big 
fellow  then  said  he  was  sick  and  felt  like  if  he 
didn't  get  some  good  food  he  would  soon  die.  Of 
course  I  felt  sorry  for  him,  but  I  had  to  have  my 
rules.  After  awhile  he  came  back  and  said  he 
would  let  me  take  his  ring  to  secure  me  if  I  would 
let  him  have  six  cakes.  I  wouldn't  agree  to  six, 
and  we  agreed  on  four.  It  was  a  gold  ring,  and 
I  sold  it  afterward  for  a  good  profit. 

"  '  I  was  making  money  plentiful.  One  night 
we  heard  that  this  same  General  Joe  Wheeler  in 
the  papers  now,  was  about  to  attack  us.  I  thought 
we  ought  to  move  out  then,  as  I  had  always  heard 
Mr.  Wheeler  was  the  most  reckless  man  in  the 
Rebel  army.  But  they  wouldn't  budge.  I  packed 
up  my  stove  and  got  everything  ready.  Next  day 
Mr.  Wheeler  charged  us  with  cavalry.  You  can't 
imagine  how  fast  they  came,  Mr.  Wheeler  in  front, 
runnin'  over  everybody.  He'd  kill  you  in  a  min 
ute  if  you  just  stood  there.  I  never  have  admired 
that  fellow  since.  I  saw  we  were  overwhelmed,  so 
I  got  my  stove  and  hid  under  a  log.  They  were 


198  NISI  PRIUS 

passing  with  a  lot  of  prisoners,  and  I  was  dis 
covered.  We  were  all  taken  to  Andersonville,  the 
Confederate  prison.  Of  course  I  was  not  glad  to 
be  in  prison,  but  that  was  better  than  fighting,  and 
I  was  satisfied.  You  know,  Jimmie,  the  Con 
federates  were  not  able  to  feed  their  prisoners  of 
war,  and  lots  of  Union  soldiers  died  from  neglect 
and  starvation  while  prisoners.  There  were  thou 
sands  of  us  Yankees  in  this  Andersonville  prison, 
and  I  thought  it  would  be  a  fine  place  for  my  busi 
ness.  So  I  managed  to  get  some  meal  and  fixed 
up  my  stove.  I  sold  cakes  for  large  prices.  I  got 
watches  and  rings  and  trinkets  after  the  money 
all  gave  out.  They  tried  to  get  me  to  sell  my 
cakes  on  credit,  but  I  told  them  I  had  to  go  by  my 
rules  and  regulations.  I  had  my  stove  out  in  the 
corner  of  the  prison  yard,  under  a  little  plum  tree. 
It  was  near  the  high  prison  wall.  We  were 
guarded  by  sentinels  all  the  time.  They  walked  on 
the  wall  with  long  guns  always  loaded.  One  day 
when  some  prisoners  were  trying  to  get  me  to  sell 
my  cakes  on  credit,  I  noticed  a  long,  tall  Texas 
Confederate  sentinel  on  the  wall  near  us.  He  had 
stopped  his  walking  and  was  looking  hard  at  me. 
He  never  spoke  a  word,  just  looked  at  me,  like  he 
was  thinking.  The  next  day  a  wounded  soldier 
crawled  to  my  stove  and  wanted  a  cake.  He  said 
he  was  expecting  a  letter  every  day  from  his 
mother,  with  money,  and  he  would  pay  me  when  it 
came.  I  told  him  I  couldn't  do  it.  The  fellow 
looked  honest,  Jimmie,  but  I  didn't  think  he  would 
live  a  week,  and  it  wasn't  business  to  sell  him  the 


NISI  PRIUS  199 

cakes  on  credit.  I  explained  it  to  him.  The  boy 
actually  cried.  Must  have  been  homesick  as  well 
as  hungry.  Now  what  do  you  reckon  happened 
just  then?  That  long,  mean-looking  Texas  sen 
tinel  called  to  me.  I  looked  up  and;  he  had  his  gun 
leveled  at  my  head  — "  You  damned  stingy  cuss,  if 
you  don't  make  that  boy  a  dozen  cakes  and  give 
'em  to  him  right  now,  I'll  blow  the  top  of  your 
head  off."  And  Jimmie,  I  believe  he  would  have 
done  it.  He  was  the  meanest-looking  man  I  ever 
hope  to  see.  I  tried  to  argue  with  him.  He 
cursed  and  cocked  his  gun.  I  told  him  how  much 
the  meal  cost  me,  and  he  began  to  count  to  ten, 
saying  he  supposed  there  would  be  a  dead  hog 
around  there  soon.  I  never  was  treated  so  bad  in 
my  life.  That  fellow  stood  there  and  made  me 
make  a  dozen  cakes  for  that  sick  boy.  I  never  got 
a  cent  for  them.  When  the  boy  had  eaten  them  the 
Texas  sentinel  told  him  to  come  every  day  at  that 
same  time  and  to  bring  two  other  sick  prisoners 
with  him  each  day.  Do  you  know,  that  man  made 
me  make  cakes  for  those  three  soldiers  every  day! 
I  believe  he  would  have  shot  me  dead  right  there 
if  I  had  refused  to  make  them.  I  wasn't  get 
ting  any  pay.  My  business  wasn't  paying  at  all. 
About  the  fourth  day  I  told  the  Texas  fellow  that 
my  meal  was  all  gone  and  I  couldn't  make  any 
more  cakes.  He  looked  at  me,  and  said  when  the 
three  soldiers  came  if  there  wasn't  plenty  of  meal 
there,  there  would  be  a  funeral  in  that  prison  soon. 
He'd  done  it,  too.  I  had  to  get  me  some  more 
meal.  I  went  to  the  commanding  officer  and  told 


200  NISI  PRIUS 

him  how  I  was  being  treated.  He  looked  curious 
at  me  and  told  me  to  obey  the  prison  guards.  He 
said  the  big  Texas  fellow  on  the  wall  had  killed 
lots  of  men,  and  he  hoped  I  wouldn't  make  him 
mad.  Of  course,  Jimmie,  I  couldn't  afford  to 
make  him  mad.  One  day  they  said  General 
Wheeler  was  to  come  there  to  inspect  the  prison. 
He  was  a  cussin'  man  too.  He  came.  He  saw 
my  stove  and  asked  mighty  rough  what  I  was  doing 
with  that  thing  there.  I  tried  to  explain  to  him, 
but  all  I  could  hear  him  say  was  something  about 
"  damned  vultures  living  on  sick  soldiers !  "  But, 
you  see,  Jimmie,  I  hadn't  got  paid  for  all  my 
cakes.  Now  that  very  day  that  Mr.  Wheeler  was 
there  the  Texas  fellow  made  me  use  up  all  the  meal 
I  had,  and  I  made  up  several  dozen  nice  cakes.  He 
then  sent  for  about  a  dozen  prisoners  and  made 
me  give  them  all  my  cakes  and  wouldn't  let  me  ask 
for  a  cent  of  pay.  He  sat  there  and  watched  them 
eat  all  the  cakes,  and  wouldn't  even  let  me  eat  one. 
He  then  made  me  hand  him  the  stove,  which  he 
threw  over  the  wall.  It  broke  into  pieces.  He 
then  looked  at  me,  with  his  hard  and  wicked  look 
and  said,  "  Now  don't  let  me  catch  you  around 
this  end  of  the  yard  again.  Them's  the  rules,  and 
we  have  to  have  rules  and  regulations,  you  know." 
Now,  Jimmie,  I  have  always  believed  Mr.  Wheeler 
put  that  fellow  up  to  that,  and  I  haven't  ever  liked 
him  since.  Do  you  blame  me  ?  ' 

"  So  Tobe,"  concluded  Hanna,  "  we  must  have 
rules  and  regulations  in  this  law  business,  just  like 
in  selling  cakes." 


CHAPTER  XXII 

THE  first  case  called  for  trial  Tuesday  morning 
was  one  in  which  Marcellus  Jumpus  starred  for  the 
plaintiff.  Jumpus  somehow  had  heard  of  the 
plaintiff's  injury,  and  it  need  not  be  said  that  in 
due  course  the  plaintiff  knew  something  of  his  legal 
rights.  Judge  Thompson,  with  a  candor  that  was 
painful,  observed  that  Jumpus  was  a  Paracamph 
lawyer  —  the  first  aid  to  the  injured.  Jumpus  had 
explained  explicitly  such  mystifying  terms  as 
"  gross  negligence,"  "  punitive  damages,"  "  per 
manent  injury,"  etc.  Early  in  the  game  Bill  Scott 
in  brotherly  sympathy  had  said  to  Jumpus,  "  You 
had  better  make  that  fellow  go  to  bed,"  and  straight 
way  the  aforesaid  plaintiff  had  sought  and  kept  his 
couch  —  at  least  for  awhile.  Colonel  Stevens  was 
defending  the  coal  company.  He  had  no  concern 
as  to  the  outcome  of  the  case.  Assumed  risk  was 
his  rapier,  with  which  he  proposed  to  run  Jumpus 
through.  The  Colonel  merely  sat  steady  in  the  boat 
and  watched  the  current  flow.  Captain  Henry 
fairly  expressed  it  when  he  said  to  Cole  in  the  court 
house  yard,  that  Jumpus  was  inside  "  as  busy  as 
a  bird  dog "  with  Hazel  v.  Blackwood  Coal  Co. 
The  observation  vouchsafed  by  Bill  Scott  was  that 
Jumpus  was  "  carrying  the  thing  too  far  with  his 
crutch  pendente  lite." 

When  Judge  Lowden  called  the  case,  Jumpus  an 
nounced  ready.     He  had  a  look  in  his  small  eye 

201 


202  NISI  PRIUS 

that  plainly  said,  "  You  delaying  octopus,  at  last  I 
have  you  where  you  have  most  dread  —  before  a 
jury."  He  rather  anticipated  that  Stevens  would 
move  to  continue  so  dangerous  a  case  was  this  — 
in  the  eye  of  Jumpus.  Stevens  did  not  so  move. 
A  motion  to  require  the  petition  to  be  verified, 
which  had  been  previously  filed,  was  what  he  called 
up.  It  was  sustained,  and  Hazel  limped  wretchedly 
to  the  clerk's  desk  to  subscribe  to  the  affidavit. 
When  Hazel  was  thus  irrevocably  tied  to  his  de 
tailed  allegations,  an  answer  and  reply  were  filed  and 
Colonel  Stevens  announced  ready. 

From  the  opening  statement,  one  would  wonder 
how  Hazel  ever  got  all  his  dismembered  parts  to 
gether  to  come  to  the  court-house.  He  had  been 
fearfully  and  terribly  cut  and1  bruised  and  mangled. 
His  left  leg  was  stiff,  his  good  right  arm  was  for 
ever  stiff,  so  stiff  he  could  not  raise  it  at  all.  For 
ever  it  must  hang  "  palsied  by  his  side."  His  in 
ternal  injuries  were  fearful.  He  had  bad  dreams 
at  night,  could  not  sleep  nor  eat.  His  earning 
power  was  totally  destroyed  and  his  expectancy  was 
twenty-nine  years. 

Stevens  declined  to  make  an  opening  statement 
for  the  defendant.  This  displeased  Jumpus.  He 
whispered  to  his  client,  "  Some  trick,  but  I'll  watch 
him."  Hazel  was  called  to  the  witness  stand. 
Jumpus,  the  picture  of  sympathy,  seized  his  good 
arm  and  helped  the  "  wreck  "  to  the  chair.  It  was 
quite  a  task  to  get  this  mashed  and  mangled  cripple 
a  distance  of  six  feet,  but  Jumpus,  the  sympathetic, 
finally  did  so,  tenderly  and  carefully.  He  con- 


NISI  PRIUS  203 

sumed  some  time  in  this  accomplishment,  but  apolo 
gized  to  the  jury,  by  saying,  "  Excuse  us,  gentlemen, 
but  you  will  have  to  bear  with  us,  in  his  condition." 

Marcellus  then  proceeded  to  delve  into  the  long 
and  sad  story  of  Hazel's  undoing.  Finally,  he  con 
cluded  his  examination  and  said, 

"  Mr.  Hazel,  if  you  want  to  rest  a  bit  before  Colo 
nel  Stevens  asks  you,  you  may  do  so." 

Hazel  sighed,  and  in  a  weak  voice  said  he  would 
try  to  stand  it.  The  Colonel  took  him  gently 
through  what  Judge  Cole  called  "  a  course  of 
sprouts."  The  witness  emphasized  the  fact  that  his 
right  arm  could  not  be  raised.  It  hung  limp  by  his 
side  and  he  was  powerless  to  lift  it.  That  condition 
had  existed  since  his  injury.  His  back  was  sprained, 
his  legs  were  weak,  his  left  one  entirely  valueless. 
He  had  to  be  almost  carried  about.  It  gave  him 
fearful  pain  to  walk  only  a  few  steps.  But  his  stiff 
arm  gave  him  the  greatest  anxiety.  Here  Jumpus 
interrupted  the  cross-examination  to  say : 

"  I  did  not  hear  you  say  just  which  arm  that  is?  " 

"  My  right  arm,"  groaned  Hazel,  and  Jumpus 
looked  things,  though  he  said  nothing.  Colonel 
Stevens  completed  the  cross-examination  and  turned 
the  witness  back  to  Jumpus,  who  proceeded  to  re- 
examine  him  more  for  emphasis  than  for  light. 
Hazel,  between  groans,  appeared  at  one  time  as  if  he 
might  sing  an  old  song,  entitled,  "  Lead,  and  I  will 
follow." 

Now  Colonel  Stevens'  hat  was  hanging  on  a  peg 
in  the  upright  post  near  the  witness  chair.  The  hat 
was  perhaps  seven  or  eight  feet  from  the  floor.  It 


204  NISI  PRIUS 

was  immediately  to  the  right  of  the  witness,  and  out 
of  reach  of  all  others  in  their  seats,  save  the  stiff- 
armed  plaintiff.  When  Jumpus  had  left  the  stiff 
arms  and  legs  and  was  rehashing  some  minor  de 
scriptive  details  relative  to  the  place  of  the  accident, 
Colonel  Stevens  suddenly  announced  he  had  to  go 
to  his  office  for  a  moment. 

"  Mr.  Hazel,"  said  he  quite  innocently,  "  will  you 
kindly  hand  me  my  hat  there  ?  " 

Hazel  on  the  impulse  reached  high  with  his  right 
hand  and  handed  the  hat  to  Stevens.  In  reaching 
for  the  hat  he  had  raised  his  arm  easily,  quickly, 
and  without  the  slightest  difficulty.  Instantly  the 
witness  saw  and  realized  his  blunder.  It  was  too 
late.  He  felt  like  a  bubble  being  rushed  out  to  the 
open  sea  on  a  receding  tide.  Jumpus  sickened. 
Captain  Henry  leaned  over  to  Judge  Yust,  in  the 
stillness,  and  muttered,  "  The  walls  of  Jericho  are 
crumbling."  Stevens  looked  at  Hazel,  and  Hazel 
looked  at  Jumpus,  and  Jumpus  looked  —  nowhere. 
He  helplessly  stared  into  space.  Stevens,  no  word 
being  yet  uttered  by  lawyer  or  witness,  reflected 
momentarily  and  then  said: 

"  I  don't  think  I'll  have  to  go.  Mr.  Hazel,  kindly 
hang  my  hat  up  for  me." 

The  man  slowly  took  the  hat,  hesitated  slightly, 
and  with  his  same  right  arm  replaced  the  hat  on 
the  peg.  He  could  not  resist  doing  it.  Some  in 
visible  force  compelled  him  —  after  he  had  inad 
vertently  made  the  first  blunder.  The  trial  went 
on,  though  Jumpus  could  not  put  any  life  into  it. 
From  thenceforth  he  was  limp. 


NISI  PRIUS  205 

At  the  noon  adjournment  Judge  Beckwith,  from 
an  adjoining  county,  drew  up  at  the  hotel.  Beck 
with,  a  princely  looking  man  of  some  fifty-odd 
years,  had  been  a  regular  and  constant  practitioner 
at  the  Greenwood  bar  for  more  than  a  quarter  of  a 
century.  His  hair  was  white,  as  white  as  the  driven 
snow,  his  mustache  sprinkled  with  gray,  his  frame 
erect,  his  countenance  kind,  merry,  handsome.  He 
dined  with  Lowden,  who  in  two  words  told  him  of 
Jumpus'  case  then  on  trial. 

Finishing  dinner,  Judge  Beckwith  met  Jumpus. 
The  latter  was  in  a  quandary  over  his  instruc 
tions. 

"  I'm  dead  sure  to  get  to  the  jury,"  he  said  to 
Beckwith,  which  prospect  the  latter  experienced 
lawyer  doubted,  in  view  of  some  remarks  made  by 
Lowden  in  professional  confidence  at  dinner. 
Jumpus  asked  Beckwith  if  he  would  write  him  some 
instructions  ? 

"  You  can  sit  down  here,"  he  said,  "  and  dash 
'em  off  in  a  minute." 

Now  Beckwith  had  not  been  overlooked  by  the 
Divine  Distributor  when  the  sense  of  humor  was 
being  divided  out.  And  Beckwith  was  going  home 
on  the  3  :2O  p.  M.  train.  Why  not  be  guilty  of  a 
bit  of  humor?  He  decided.  He  wrote  a  com 
plete  set  of  instructions,  and  finished  them  just  as 
the  court-house  bell  summoned  the  joyful  Jumpus 
back  to  war.  He  seized  the  instructions,  pocketed 
them,  thanked  Beckwith,  and  hurried  on  —  to  help 
Hazel  to  his  chair. 

Jumpus  was  beginning  now  to  forget  the  arm 


206  NISI  PRIUS 

episode.  He  argued  that  he  still  had  other  and 
many  ailments,  if  he  had  lost  the  arm.  He  met 
the  mine  foreman  at  the  door  and  passed  him 
haughtily.  Then  he,  again  the  essence  of  sympa 
thy,  aided  Hazel  to  his  chair,  but  it  was  noted  he 
did  not  duplicate  his  apology  to  the  jury.  He  was 
improved,  but  still  had  misgivings. 

And  so  they  fought  on  through  the  afternoon. 
Beck  with  looked  in  before  he  left.  They  were 
nearing  the  end  of  the  evidence,  and  he  walked 
away,  rather  more  hurriedly  than  was  his  custom. 
Stevens  had  made  his  motion  for  a  peremptory  in 
struction.  Lowden  had  overruled  it.  His  lucid 
and  exhaustive  opinion  in  passing  on  that  motion 
may  be  summarized  into  two  lines. 

"  Stevens,"  said  he  to  that  lawyer,  "  do  you  sup 
pose  this  court  has  the  heart  to  throw  old  Jumpus 
out  on  a  peremptory,  after  that  arm  tragedy?  And 
then  I  want  to  hear  Jumpus  follow  you,  anyhow," 
he  tantalizingly  concluded. 

Stevens  finished  his  evidence  quickly.  It  was 
short,  sharp,  telling.  He  then  passed  up  his  in 
structions  to  the  Court.  Jumpus  thought  of  his 
own  batch.  He  had  not  read  them  since  Beckwith 
had  prepared  them,  but  he  knew  Judge  Beckwith  to 
be  at  the  forefront  of  the  profession.  And  then, 
unlike  his  colleague  Tobias  Mathews,  he  so  far 
recognized  his  own  shortcomings  as  to  force  the 
realization  that  it  was  altogether  useless  for  him 
to  read  them. 

This  is  what  he  handed  up,  and  this  is  what  Judge 
Lowden  sat  there  that  day  on  the  bench  and  read: 


NISI  PRIUS  207 

"  INSTRUCTIONS 

"I  —  The  Court  instructs  the  jury  that  the  de 
fendant  coal  company  was  and  is  an  insurer  of  the 
plaintiff's  life  and  person,  and  that  when  it  em 
ployed  him  it  agreed  and  undertook,  by  implica 
tion,  to  see  that  so  long  as  he  remained  in  its  serv 
ice  it  would  provide  him  with  a  perfectly  safe  and 
secure  place  in  which  to  work,  and  one  in  which  it 
would  be  impossible  for  him  to  sustain  any  injury 
to  his  leg,  or  back  or  arm  (or  internal  injury), 
whether  by  his  own  negligence  or  by  the  negligence 
of  any  of  his  fellow-servants;  and  if  the  jury  shall 
believe  from  the  argument  of  the  attorney  for  the 
plaintiff  that  the  plaintiff  received  the  injuries  com 
plained  of  while  on  defendant's  premises,  and  shall 
further  believe  from  said  argument  that  the  defend 
ant  is  an  octopus,  or  is  in  any  degree  related  to  an 
octopus,  they  must  find  for  the  plaintiff  such  com 
pensatory  damages  as  the  jury  may  believe  from 
said  argument  he  has  sustained,  not  less  than  the 
amount  claimed  in  the  petition. 

"  II  —  Compensatory  damages  mean  in  law  the 
money  which  the  jury  has  the  power  to  take  out 
of  the  treasury  of  an  octopus  or  other  corporation 
and  put  into  the  pocket  of  the  plaintiff,  and  inas 
much  as  the  attorney  for  the  plaintiff  is  entitled  to 
one-half  of  this  sum  for  his  services  as  a  witness 
during  his  speech,  the  jury  are  warned  that  it 
might  be  well  to  award  interest  on  the  verdict  from 
the  date  of  the  incorporation  of  the  defendant. 

"  III  —  Negligence,  when  applied  to  the  defend- 


208  NISI  PRIUS 

ant,  means  its  failure  to  pay  compensatory  and 
punitive  damages  on  demand  immediately  after  the 
plaintiff  is  injured,  whether  by  his  own  or  fellow- 
servant's  carelessness;  and  means,  when  applied  to 
the  plaintiff,  his  failure  to  sue  for  such  damages 
at  the  first  term  of  court  having  jurisdiction  of  the 
crime. 

"  IV  —  Gross  negligence  means  any  act  of  a 
corporation. 

"V  —  Ordinary  care  means  any  act  of  the  plain 
tiff  or  of  the  plaintiff's  attorney. 

"  VI  —  Contributory  negligence  means  the  act  of 
the  defendant  in  submitting  its  case  to  this  particu 
lar  jury. 

"  VII  —  Punitive  damages,  as  used  'in  the  in 
structions,  means  the  amount  the  jury  must  award 
the  plaintiff  for  the  stiff  arm. 

"  VIII  —  Nine  or  more  of  the  jury  may  find  a 
verdict  for  the  plaintiff,  but  if  less  than  twelve 
agree,  those  agreeing  must  sign  the  verdict." 

Judge  Lowden  saw  the  trail  of  Beckwith.  He 
knew  at  once  that  the  trustful  Jump'us  had  not  so 
much  as  seen  the  instructions.  He  suppressed  him 
self,  and  quietly  put  them  in  his  coat. 

While  Lowden  was  revising  his  instructions  at 
the  suggestion  of  counsel,  Hazel  sighed  and 
groaned.  Once,  in  a  weak  voice,  he  asked  for 
water. 

"  Mr.  Sheriff,"  spoke  up  Jumpus,  "  give  the 
plaintiff  a  glass  of  water." 

And  thus  the  drama,  with  Jumpus  in  the  center 


NISI  PRIUS  209 

of  the  stage,  proceeded  while  waiting  the  comple 
tion  of  the  Court's  charge.  It  was  almost  finished 
when  an  unlocked  for  and  disastrous  event  oc 
curred. 

Jim  Higgins,  Master  Commissioner,  of  whom  we 
have  heard  heretofore,  rushed  wildly  to  the  door  of 
the  court-house,  yelling  "  Fire !  "  at  the  top  of  h'is 
voice.  People  broke  and  ran,  pell  mell,  toward  the 
scene  of  the  supposed  blaze.  Hazel,  he  of  stiff 
limbs  and  impulsive  temperament,  was  the  first  to 
leap  to  his  feet,  dash  from  the  building  and  fairly 
fly  down  the  street,  running  like  a  wild  deer,  his 
voice  at  its  height,  calling  "Fire!"  The  judge, 
jury,  and  lawyers  leisurely  went  to  the  door  and 
looked  out.  They  had  all  noted  Hazel  when  the 
alarm  was  given ;  they  saw  him  disappear  down  the 
street  as  fleet  of  foot  as  any  lad  of  Marathon. 

It  was  a  false  alarm. 

The  jury  and  judge  resumed  their  seats.  The 
people  were  all  returning.  The  jury  waited. 
Presently,  Hazel  hurried  in.  Midway  between  the 
door  and  his  chair  a  thought  apparently  struck  him. 
He  paused  and  then  limped  slightly  to  his  chair. 

Marcellus  Jumpus  looked  at  Hazel. 

Afterward,  Clerk  Tom  New  said  he  heard  Jumpus 
mutter  between  his  teeth,  "  Pity  you  didn't  break 
your  damned  neck  runnin'  down  that  street." 

Of  course  the  wind  was  out  of  Jumpus'  sails. 
In  truth,  they  hung  limp  and  lifeless.  Stevens 
spoke  briefly,  ten  minutes.  Jumpus  tried  to  reply. 
Once  he  very  nearly  "  got  up  steam,  but  his  pipes 
were  plugged,"  said  Captain  Henry.  That  was 


210  NISI  PRIUS 

when  he  injected  into  his  speech  something  about 
a  probability  of  Hazel's  mind  being  weakened  by 
his  long  and  intense  pain  and  suffering.  Finally. 
he  resumed  his  seat.  Higgins,  the  fire  alarm  ex 
pert,  looked  in  at  the  door,  but  passed  on.  Very 
soon  the  jury  returned  a  verdict  for  the  defendant, 
and  court  was  adjourned  for  the  day. 

That  evening  at  dusk  Judge  Cole,  coming  up 
Main  street,  met  Jumpus  standing  on  the  corner  at 
Barvis'  drug  store.  He  wore  a  countenance  of  an 
ger.  In  his  hand  he  carried  a  huge  stick  or  club. 
"  Hello,  Jumpus !  "  greeted  Cole ;  "  what  are  you 
doing  here?  " 

"  I'm  waitin'  for  Jim  Higgins  and  his  big 
mouth,"  responded  defeated  hope  —  and  he  was. 
Had  the  worthy  Master  Commissioner  ventured 
thither  at  that  hour  the  prediction  may  be  safely 
indulged  that  some  person  other  than  James  Hig 
gins,  Esq.,  would  probably  have  filed  a  report  of 
assets  and  liabilities  in  a  suit  to  settle  the  estate  of 
a  certain  demised  citizen  of  Greenwood,  Mecklen- 
berg  County,  Kentucky. 

But  the  fates  guided  Higgins  that  evening,  and 
he  came  not. 


CHAPTER  XXIII 

WHILE  Captain  Henry  and  Judge  Cole  were 
friends  after  the  manner  of  a  rather  loose  construc 
tion  of  that  term,  and  were  daily  thrown  into  pleas 
ant  contact  one  with  the  other,  yet  there  was  a 
certain  element  of  jealous  envy,  poorly  concealed,  in 
each  for  the  other.  If  one  would  say  to  Henry 
that  Cole  was  "  a  fine  lawyer,"  the  former  inva 
riably  replied,  "  Yes,  Cole  is  a  fairly  good  law 
yer."  If  you  had  occasion  to  animadvert  on 
Henry's  talents  to  Cole,  the  latter  would  say,  "  Yes, 
he  does  right  well."  Once  when  Captain  Henry 
said  something  about  his  authorities,  Judge  Cole 
had  remarked  that  no  authorities  would  ever  be 
produced,  as  "  Henry  practiced  altogether  by  ear." 

On  this  Wednesday,  the  ninth  day  of  the  term, 
the  twelfth  day  of  June,  these  two  belligerents 
were  lustily  pounding  each  other  in  the  famous 
"  horse-swappin' "'  case  of  Sledge  v.  Goad.  A 
mistrial  in  the  quarterly  court,  verdict  for  plain 
tiff  for  $58  in  that  tribunal,  an  appeal  to  the  cir 
cuit  court,  two  mistrials  therein,  and  this,  the  third 
effort,  was  the  expensive  and  long  drawn  out  his 
tory  of  this  now  famous  cause. 

The  recovery  or  non-recovery  by  the  plaintiff 
was  now  in  itself  an  insignificant  matter.  It  had 
degenerated  into  a  death  struggle  for  costs.  The 
last  taxation,  thanks  to  the  thrift  of  the  irrepressi 
ble  New,  showed  an  accumulated  bill  of  $277.60 

211 


212  NISI  PRIUS 

to  be  paid  by  the  unsuccessful  party.  Each  liti 
gant  was  amply  solvent,  hence  two  titans  held  the 
forum,  trying,  as  Jim  Hanna  said,  "  to  get  from 
under."  An  imposing  array  of  witnesses  had  car- 
avaned  to  each  trial,  sworn  lustily,  claimed  their 
attendance,  heard  of  the  hung  jury,  and  bided  their 
time  against  the  next  calling  of  the  case. 

Now,  in  horse  cases,  wherein  is  involved  the 
large  question  of  fraud  and  misrepresentation,  the 
qualities,  traits,  and  defects  of  the  respective  ani 
mals,  there  is  a  vast  and  comprehensive  latitude 
both  in  veracity  and  knowledge,  particularly  the 
former.  Molly,  the  gray  mare,  was  quite  easily 
proved  the  best  and  soundest  of  animals,  free  from 
any  defect.  Likewise,  Beck,  the  mule,  whose  char 
acter  and  reputation  were  in  the  limelight,  was 
handily  shown  to  be  the  best  and  most  amiable  of 
toilers,  with  never  an  inclination  to  kick,  even 
turning  her  other  cheek  when  assaulted.  These 
two  propositions  being  indubitably  established,  it 
was  then  quite  satisfactorily  made  clear  that  both 
Molly  and  Beck  were  victims  of  all  the  ills  that 
horse  and  mule  flesh  are  heir  to.  Each  was  moon- 
eyed,  each  was  thick-winded.  Molly  would  eter 
nally  balk,  while  Beck  would  lie  down,  accoutered. 
In  short  and  in  fine,  Sledge  had  traded  Goad  a 
first-class  animal,  receiving  therefor  a  diseased  and 
worthless  one,  and  Goad  had  likewise  traded 
Sledge  a  moydel  mule,  only  to  be  handed  a  blind  im 
becile  of  a  mare  in  return.  These  utterly  hopeless 
and  irreconcilable  facts  were  proved  by  two  score 
of  witnesses. 


NISI  PRIUS  213 

Hence  the  repeated  occurrence  of  that  which  the 
public  cannot  always  understand  —  a  hung  jury. 

We  shall  not  encumber  these  pages  with  the 
many  fierce  tilts  between  Judge  Cole  and  Captain 
Henry,  now  transformed  into  "  Mr."  Cole  and 
"  Mr."  Henry.  Suffice  it  to  say,  the  case  was 
"  practiced  by  the  Code."  Nothing  was  waived  or 
agreed  to.  Toward  the  conclusion  the  fight  was 
fast  and  furious,  and  looked  favorable  for  the  de 
fendant.  An  insignificant  incident  turned  the  tide 
of  battle  and  gave  Judge  Cole  a  signal  victory. 
Lest  some  other  advocate  in  some  other  age  and 
under  some  other  sun  may  make  the  same  irre 
trievable  error,  the  story  of  what  happened  is  here 
presented. 

The  evidence  had  been  concluded  and  the  argu 
ment  of  counsel  was  about  to  begin.  Under  the 
pleadings,  the  onus  probandi  was  on  the  defend 
ant,  which,  of  course,  gave  to  his  counsel  that  price 
less  and  effective  weapon  —  the  concluding  argu 
ment. 

Lawyers,  you  have  heard  advocates  claim  they 
preferred  the  first  address  to  the  jury.  Heed  them 
not,  for  they  know  not  what  they  say.  There  is 
this  immense  difference  between  the  first  and  last 
speech.  The  first  advocate  must  do  these  three 
things : 

i . —  Argue  his  case. 

2. —  Anticipate  his  opponent. 

3. —  Leave  no  gaps  unclosed. 

Now  the  concluding  attorney  has  this  one  broad 
license : 


2i4  NISI  PRIUS 

i. —  Say  what  suits  him. 

As  Judge  Yust  frequently  said,  he  who  would 
voluntarily  elect  to  make  the  opening  address  in 
stead  of  the  closing  one  was  a  fit  subject  for  the 
court,  sua  sponte,  to  appoint  a  guardian  ad  litem 
to  represent. 

Judge  Cole  was  afraid  of  Henry's  closing  argu 
ment.  Vainly  had  he  fought  for  the  burden  of 
proof  —  beginning  his  fight  after  the  pleadings  had 
been  made  up.  His  idea  was  that  the  plaintiff,  be 
ing  plaintiff,  was  entitled  always  to  open  the  evi 
dence  and  close  the  argument.  Sorely  was  he  dis 
appointed  when  the  Court  ruled  otherwise.  Even 
tually,  it  made  victory  perch  upon  his  banners  in 
a  way  not  dreamed  of,  all  of  which  was  in  man 
ner  and  form  as  follows,  to-wit :  Judge  Cole,  spon 
sor  for  the  gray  mare,  launched  forth.  He  sang 
paeans  to  her  many  virtues  and  flung  out  some 
strange  words  about  Pegasus.  He  said  that  Henry 
and  the  plaintiff  and  the  mule  were  similar  in  their 
stubbornness  and  disposition.  At  this  comparison, 
more  or  less  odious,  Captain  Henry  made  an  error. 
He  left  the  court-room,  concluding  to  remain  out 
of  hearing  until  disagreeable  personalities  were 
dropped,  and  with  the  further  design  and  purpose 
of  sharpening  his  eloquence  with  a  tool  he  had 
used  before,  to-wit,  one  very  long  and  tall  drink 
from  Jim  Hanna's  most  recent  jug. 

Now,  he  who  is  to  follow  ought  to  hear  every 
word  of  the  first  address.  He  should  hear  every 
argument,  illustration,  interpretation  of  law  and 
evidence,  every  figure  of  speech,  and  particularly 


NISI  PRIUS  215 

every  anecdote  that  emanates  from  him  who  is  to 
be  followed  and  —  emasculated. 

Judge  Cole  told  an  anecdote  in  that  speech.  It 
was  a  long  and  side-splitting  affair.  It  required, 
in  its  many  details  and  ramifications,  not  less  than 
twenty  minutes  of  time.  This  was  the  twenty  min 
utes  Captain  Henry  was  out.  He  left  the  court 
room  just  before  Cole  began  his  story  and  re 
turned  thereto  just  after  it  was  finished.  Cole  was 
reminded  of  the  story  by  the  testimony  of  one  of 
defendant's  witnesses.  He  began  somewhat  after 
this  fashion: 

"  Now,  there's  Tom  Bandy's  testimony.  Tom's 
a  pretty  specimen  to  be  coming  in  here  trying  to 
swear  away  this  plaintiff's  rights.  And,  gentle 
men,  that  reminds  me  of  a  story  I  once  heard  about 
old  man  Judson  Tyson,  who  lived  out  here  near 
Pond  Creek,"  and  Cole  proceeded,  with  great  elab 
oration  of  detail,  to  relate  the  story  of  old  man 
Judson  Tyson.  It  cannot  grace  these  pages  for 
divers  reasons,  not  the  least  of  which  is  a  desire 
to  keep  within  the  limits  prescribed  by  Congress  in 
its  statutory  regulation  of  the  mails  of  these  United 
States  of  America. 

The  story  was  told,  immensely  enjoyed  by  jury, 
onlookers  and  Court,  decorum  to  the  contrary  not 
withstanding.  While  the  tale  is  not  here  related, 
the  reader  ought  to  be  told  that  this  story  was  one 
of  those  lengthy  affairs  the  whole  point,  wit,  and 
substance  of  which  hung  exclusively  upon  the 
denouement.  The  thing  carried  the  auditor,  puz 
zled  and  expectant,  till  suddenly,  at  the  end,  the 


2i6  NISI  PRIUS 

climax  elucidated,  illuminated,  electrified,  con 
vulsed.  Cole  told  it,  put  it  aside,  resumed  his  ar 
gument,  including  personalities,  and  it  was  then 
that  Captain  Henry  returned  to  the  court-room. 

After  unlimbering,  charging,  and  counter-charg 
ing,  Judge  Cole  finally  ended  his  speech  and  sat 
down. 

Captain  Henry,  wearing  that  satisfied  air  ever 
and  always  with  him  of  the  last  speech,  arose  and 
addressed  the  jury.  He  had  not  spoken  ten  min 
utes  before  he  made  the  fearful,  fatal,  pitiful  mis 
take —  penalty  for  absenting  himself  from  the 
court-house  while  his  worthy  opponent  spoke. 

He  told  an  anecdote. 

It  was  Cole's  anecdote. 

He  said  that  Sledge,  the  plaintiff,  "  was  a  rare 
and  wonderful  swearer.  And,  gentlemen,  the  way 
he  testifies  in  this  case  reminds  me  of  a  story  I  once 
heard  on  old  man  Judson  Tyson,  who  used  to  live 
out  here  on  Pond  Creek.  It's  a  little  long,  but  it's 
worth  telling,  and  I  am  going  to  tell  it." 

And  he  told  it. 

He  omitted  nothing,  but  gave  all  the  fearful  de 
tails.  It  was  awful.  At  the  very  outset  of  the 
tale  the  jury,  spectators,  and  Court  shook  with 
laughter.  The  Captain,  mistaking  this  as  a  tribute 
to  his  story-telling  ability,  inwardly  congratulated 
himself  and  elaborated  the  greater,  himself  smiling 
at  the  success  he  was  achieving.  On  he  went. 
The  further  he  went  the  more  intense  became  the 
laughter,  although  no  point  had  as  yet  appeared  in 
the  telling,  a  thing  that  did  not  dawn  upon  the 


NISI  PRIUS  217 

pleased  narrator.  He  thought  his  comical  manner 
of  recitation  was  winning  this  plainly  visible  success, 
and  he  flushed  with  conscious  gratification.  The 
ever-increasing  merriment  only  served  to  spur  him 
on  to  greater  effort.  Once  when  he  made  a  gri 
mace  in  imitation  of  old  man  Judson  Tyson,  just  as 
Cole  had  done,  the  laughter  was  side-splitting. 
One  large  and  fat-faced  juryman  fairly  shook  until 
the  tears  ran  down  his  cheeks.  The  Court  was  in 
clined  under  the  bench,  his  only  refuge.  He 
thought  he  would  expire  then  and  there.  The  Cap 
tain  saw  and  noted  Judge  Lowden's  intense  laugh 
ter,  something  out  of  the  ordinary  with  this  re 
served  judge.  This  was  accepted  as  the  very  high 
est  tribute  to  the  story-teller,  and  he  redoubled  his 
grimaces,  antics,  brogue.  He  prolonged  the  thing, 
loath  to  leave  a  theme  that  was  making  such  a  hit. 

O  you  jury-lawyers,  reading  here  of  Henry's 
dilemma,  may  the  gods  of  our  temples  never  send 
this  thing  to  you! 

After  a  long  agony  this  ended,  as  all  things  else 
must  end.  The  Captain  plunged  vociferously  into 
his  argument.  He  soared,  he  shook  his  finger,  he 
lauded  and  condemned  alternately.  He  really 
made  an  ingenious  and  able  argument.  It  availed 
nothing.  His  hearers  could  not  listen.  They  tried 
—  honestly  tried.  It  was  psychologically  impossi 
ble.  The  laughter  was  still  there.  Very  true,  it 
had  gone  in  under  the  surface,  but  it  was  yet  there. 
The  jury  could  still  hear  the  brogue,  could  still  see 
the  second-handed  grimaces,  and  still  shook  in 
wardly.  Men  may  go  from  the  sublime  to  the 


218  NISI  PRIUS 

ridiculous  in  a  short  space  of  time,  but  they  cannot 
go  from  the  ridiculous  to  the  sublime  suddenly. 
Before  they  get  away  from  the  ridiculous  entirely 
the  sublime  has  gone.  Henry  finished  his  speech. 

The  jury  retired.  To  show  that  they  carried 
into  the  jury  room  more  of  the  ridiculous  than  of 
the  sublime,  as  their  door  closed  on  them  the  large 
fat-faced  juror  promptly  exploded.  Such  things 
are  contagious,  especially  so  when  each  has  already 
an  artery  full  of  the  virus.  Others  exploded,  and 
presently  the  twelve  men  giggled  and,  like  children 
in  school,  were  powerless  to  stop  themselves. 

Downstairs  the  Captain  sat  and  confidently 
awaited  his  verdict.  Opposite  sat  Cole,  feasting 
yet  on  the  meal  that  was  to  last  him  many  and 
many  a  year.  Marcellus  Jumpus  wrote  a  brief 
note.  He  handed  it  to  the  sheriff,  who  in  turn  de 
livered  it  to  the  Captain.  It  read  thus : 

"  HENRY  —  While  you  was  out  gettin'  that  drink 
Cole  told  that  Judson  Tyson  story  to  the  jury. 
—  JUMPUS/' 

Lowden  was  looking  at  Captain  Henry.  Never 
in  his  life  of  observation  did  he  so  enjoy  a  counte 
nance-study.  Henry's  countenance,  at  first  but 
usual,  gradually  underwent  a  change.  You  could 
see  the  thing  slowly  dawn  upon  him.  Then  you 
could  see  his  full  and  complete  realization  of  it  all. 
It  was  a  wonderful  study  in  physiognomic  expres 
sion. 

Presently,  footsteps  were  heard.     The  jury  was 


NISI  PRIUS  219 

returning.  Captain  Henry  arose,  looked  hopelessly 
about  him,  and  without  waiting  to  hear  the  verdict 
walked  slowly  from  the  court-house. 

Later,  he  filed  a  motion  for  a  new  trial,  his 
chief  ground  being  the  duplication  of  the  Judson 
Tyson  story.  And  Lowden  considered  it  seriously 
—  for  a  while. 

The  end  of  this  episode  occurred  toward  the  close 
of  the  term.  As  the  Captain  entered  the  court 
room  one  morning  just  before  motion  hour,  Clerk 
Tom  New,  unable  to  resist,  said  to  him: 

"  Mornin',  Captain !  how's  old  man  Judson  Ty 
son  this  mornin'  ?  " 

"  Will  you,"  hotly  replied  the  attorney,  "  do  me 
the  kindness  to  go  to  hell,  and  take  old  man  Judson 
Tyson  with  you?  " 

And  the  thing  was  not  mentioned  at  Greenwood 
for  a  long  while  —  in  the  Captain's  presence. 


CHAPTER  XXIV 

WEDNESDAY  afternoon  wore  wearily  away,  while 
Judge  Thompson  and  Bill  Scott  fought  out  and  elu 
cidated  many  phases  of  the  ancient  and  honorable 
writ  of  forcible  entry  and  detainer.  Scott  knew  in 
an  altogether  incompetent  manner  —  hearsay  — 
that  the  tenant  could  not  assail  his  landlord's  title. 
This  he  voluntarily  and  inopportunely  suggested  to 
the  Court  more  than  once.  If  the  fates  had  ever 
decreed  that  Judge  Lowden  should  overlook  that 
principle  of  law,  their  plans  went  awry,  as  Scott 
impressed  it  lastingly. 

Likewise,  Judge  Thompson  displayed  elaborate 
knowledge  of  the  case  in  hand,  and  in  his  opening 
statement  vouchsafed  a  long,  complete,  and  non-un 
derstandable  explanation  of  the  distinction  between 
a  tenant  at  will  and  a  tenant  by  sufferance.  The 
statute  of  frauds  and  perjuries,  with  its  hoary  Eng 
lish  origin,  was  learnedly  dwelt  upon. 

This  cause  proceeded  throughout  the  long  after 
noon,  and  no  single  note  of  interest  broke  upon  the 
weary  Lowden,  who  at  intervals  ventured  only, 
"  Overruled,"  "  Sustained,"  "  Proceed."  But  when 
court  was  adjourned  at  five  o'clock  the  case  was 
completed,  and  Lowden  was  up  with  the  docket. 

With  Wednesday  evening  came  a  luminary,  a  sat 
ellite.  Silas  F.  Dockery  was  his  name,  America 
was  his  nation,  a  certain  county  his  dwelling-place, 
and  damages  his  salvation  (apologies  to  T.  Tit 
mouse,  Esq.). 

220 


NISI  PRIUS  221 

He  was  more  than  six  feet  tall,  his  forehead 
broad,  and  his  head  seemed  a  great  dome  set  upon 
some  pious  temple.  His  eyes  were  small  and  cun 
ning,  but  they  sat  too  close  one  to  the  other.  He 
wore  a  streaky  red  beard,  which  fell  only  from  his 
chin,  and  he  invariably  turned  this,  end  up,  and 
played  with  it  between  his  teeth.  He  carried  a 
green  bag  —  always.  Instead  of  smiling,  he 
fawned. 

Now,  Mr.  Dockery  came  to  Greenwood  and 
fetched  his  witnesses  with  him,  in  the  main.  Very 
true,  they  could  be  procured  in  Mecklenberg 
County,  the  scene  of  the  accident  that  gave  rise 
to  the  pending  lawsuit,  but  like  the  expert  mechanic 
Dockery's  personal  witnesses  gave  to  his  structure 
of  evidence  those  innumerable  little  fine  touches 
that  the  witnesses  to  the  fact  either  would  not  or 
could  not  supply.  He  drove  up  to  Hanna's  door 
in  state,  registered  himself  and  his  valiant  de 
ponents,  shook  hands  patronizingly, —  with  both 
hands, —  and  was  very  soon  actively  getting  it  cir 
culated  that  his  case  was  a  "  big  lawsuit."  As  a 
matter  of  actuality,  the  case  was  decidedly  unim 
portant  and  trivial;  but  Dockery  in  twelve  hours 
had  the  town  agog  and  talking  of  nothing  but  "  the 
Roads  case." 

When  court  convened  the  following  day  Dock 
ery  strode  in  in  all  the  majesty  of  his  six  feet  and 
his  massive  dome.  When  he  entered,  Judge  Low- 
den  had  the  sensation  produced  when  a  reptile 
crawls  nigh,  and  Bill  Scott  said  to  the  lawyer  sit 
ting  near  him,  "  There's  old  Uriah  Heep  again." 


222  NISI    PRIUS 

Now  Dockery's  case  was  not  set  for  Thursday. 
It  was  not  set  for  Friday.  Saturday  was  the  day. 
He  came  Wednesday  —  he  and  his  witnesses. 
Wherefore  this  early  arrival?  O,  ye  of  little 
knowledge,  know  ye  not  why?  He  came  to  build 
up  a  sentiment  in  the  community  —  for  his  case. 
His  early  arrival,  all  these  witnesses,  all  this  prep 
aration,  clearly  foretold  that  a  "  big  case  "  was  im 
pending. 

Ere  many  hours  men  were  saying  "  Dockery 
doesn't  fool  away  his  time  with  little  cases,"  and 
"  Mr.  Dockery  turned  down  all  offers  of  compro 
mise."  This  latter  observation  had  been  success 
fully  put  afloat  by  Dockery,  as  we  shall  see  anon. 

Marcellus  Jumpus  was  associated  with  Dockery 
in  this  case,  to  help  select  the  trial  jury  —  for  a  pit 
tance,  and  that  contingent.  Before  motion  hour 
Dockery  had  a  list  of  the  jury  panel.  He  knew  to 
what  political  party  each  member  thereof  belonged 
and  with  what  church  each  juror  affiliated.  He 
ascertained  where  they  all  resided,  their  records  at 
this  and  former  terms  as  jurors  in  damage  suits. 

"  Well,  Mr.  Binkley,"  he  lied  to  that  juror,  "  I 
am  glad  to  see  you  looking  so  well.  I  recall  see 
ing  you  on  the  jury  here  several  years  ago."  All 
of  which  did  not  displease  Juror  Binkley,  as  may  be 
seen  by  those  who  know  that  flesh  is  weak,  and 
that  even  a  juror  is  flesh. 

At  that  motion  hour  Dockery  had  a  motion.  He 
was  sitting  among  the  jurymen  in  good  fellowship, 
when  he  arose.  He  did  not  say,  "  Roads  v.  L.  & 
N.  R.  R.  Co,"  but  only  "  the  Roads  case,"  as  if 


NISI  PRIUS  223 

all  the  world  knew  of  this  great  cause.  Judge 
Beckwith,  for  the  defendant,  knew  all  these  well- 
worn  tactics.  Instead  of  striking  back  and  expos 
ing  them,  he  sat  and  quietly  suffered  with  nausea. 
Dockery  in  "  the  Roads  case  "  took  some  orders 
for  the  personal  appearance  of  four  or  five  doctors. 
He  explained  that  he  had  tried  to  take  the  deposi 
tion  of  a  Philadelphia  specialist,  but  had  failed. 
However,  he  said,  "  These  fine  Mecklenberg 
County  doctors  will  do." 

Now,  two  of  these  chanced  to  be  present.  As 
jurors  are  flesh,  even  so  are  physicians  and  sur 
geons.  They  were  not  displeased  with  Dockery. 

Judge  Beckwith  called  up  Higgins  v.  L.  &  N. 
R.  R.  Co. —  another  of  Dockery's  cases.  He 
wanted  something  definite  done  about  it. 

"  Continue  it,  Judge  Beckwith,"  said  Dockery. 
"  That's  a  small  case,  Judge.  Higgins  had  his  leg 
broken.  I'm  satisfied  Judge  Beckwith  and  I  can 
adjust  it.  It's  too  small  a  matter  to  try  out." 

If  Higgins  had  a  broken  leg  —  which  by  no 
means  follows, —  he  was  much  more  seriously  in 
jured  than  was  Plaintiff  Roads.  Now  the  reader 
might  as  well  know  what  ailed  Roads.  He  looked 
the  picture  of  health — 'but  he  wasn't.  He  had 
"  exostosis  of  the  sacro-iliac,"  which,  in  turn,  pro 
duced  permanent  "  neurasthenia,"  and  this  in  turn 
had  produced  "  incipient  paralysis."  The  muscles 
of  the  rear  neck  were  gradually  withering. 

Towards  evening,  after  Public  Sentiment  had 
been  sufficiently  crystallized  and  all  eyes  and  ears 
and  hearts  were  centered  in  "  the  Roads  case," 


224  NISI  PRIUS 

Dockery  was  talking  with  Jumpus.  As  the  crim 
inal  term  has  ended  in  this  chronicle,  their  con 
versation  comes  too  late  to  find  place  in  these  pages. 
Dockery  saw  two  jurymen  approaching.  He  care 
lessly  turned  his  back  to  them.  As  they  grew 
nearer  and  were  within  easy  hearing,  he  said  to 
Jumpus,  with  apparent  secrecy, 

"  The  railroad  offered  me  five  thousand  in  the 
Roads  case,  but  I  couldn't  think  of  that  in  an  in 
jury  like  this." 

The  two  triers  of  the  fact  heard  this  "  secret," 
and  forthwith  gulped  it  down;  nor  did  they  for 
get  it. 

Beckwith  would  have  paid  one  hundred  dollars 
to  get  rid  of  the  case,  but  no  negotiations  had  ever 
been  opened  looking  to  a  compromise.  From  all  of 
which  it  must  appear  passing  strange  that  no  offer 
had  been  made,  yet  five  thousand  dollars  in  glit 
tering  gold  had  been  spurned  with  scorn. 

Presently  Dockery  and  Jumpus  were  seen  driv 
ing  over  the  fair  little  city  of  Greenwood.  Dock 
ery  went  to  see  and  to  be  seen. 

"  George  Barton  —  he's  on  the  jury  this  court," 
said  Jumpus,  "  lives  there,  in  that  yellow  house," 
and  on  they  drove,  Dockery  quiet  —  outwardly. 

It  has  been  said  that  Roads  was  fearfully  in 
jured.  The  next  evening  Dockery,  with  pillows, 
took  the  injured  Roads  for  a  drive.  The  plaintiff 
stood  the  exertion  well,  until,  suddenly,  he  weak 
ened,  grew  limp,  and  looked  as  if  he  would  faint 
away.  It  was,  to  be  sure,  the  purest  accident  that 
this  took  place  in  the  very  front  of  Juror  Barton's 


NISI  PRIUS  225 

house  —  the  yellow  house.  Mr.  Barton  was  on  his 
front  porch.  He  saw  the  vehicle  stop.  He  saw 
Dockery  alight,  and  realized  that  something  was 
amiss.  Dockery  called  for  help,  and  Barton  hur 
ried  to  him. 

"Ah,  it's  Mr.  Barton,"  said  Dockery.  "Mr. 
Roads  is  suffering  intense  agony.  Kindly  help  me 
lift  him  to  the  ground." 

And  they  tenderly  removed  the  plaintiff  to  the 
soft  greensward.  Dockery  whispered  to  Barton: 

"  He  collapsed  suddenly.  I  had  every  reason  to 
believe  he  could  stand  this  little  drive;  it  should 
have  helped  him,  poor  fellow !  " 

A  crowd  assembled.  A  certain  physician  was 
summoned,  and  after  half  an  hour  of  commotion 
Roads  was  gently  hauled  away  amid  such  as  these, 
"  Poor  fellow !  "  "  He's  in  bad  shape !  "  "A  per 
fect  wreck!  " 

And  Juror  Barton  returned  to  his  porch  —  think 
ing  of  poor  Roads. 

Meanwhile  Judge  Beckwith  was  trying  lawsuits 
by  day  and  preparing  himself  therefor  by  night. 

By  Saturday  morning  the  docket  was  congested 
and  there  was  little  prospect  of  "  the  Roads  case  " 
being  reached.  Dockery  entered  the  court-room, 
bowing  and  smiling,  rubbing  his  clammy  hands  to 
gether  in  a  way  that  evoked  another  observation 
from  Bill  Scott  about  Mr.  Heep.  Tom  New 
looked  unusually  well  pleased  with  himself  this 
morning.  The  world  at  large  knew  not  the  reason 
why,  but  Judge  Lowden  did.  That  observant  jurist 
had  overheard  Dockery  asking  New  for  some  blank 


226  NISI  PRIUS 

subpoenas.  Obtaining  them,  Dockery  had  pinned 
this  upon  the  lapel  of  the  clerk's  shining  black  coat: 

"  New,  I  wish  we  had  you  over  in  our  county. 
You  know,  the  greatest  help  to  lawyers  is  a  ca 
pable  clerk." 

Now,  if  indeed  the  pen  is  mightier  than  the 
sword,  fiction  in  this  one  instance  was  more  potent 
than  the  truth,  for  indubitably  Dockery  had  won 
New,  and  not  through  the  instrumentality  of  truth. 
The  thoughtful  Dockery  had  seen  to  it  that  both 
the  clerk  and  the  sheriff  were  fully  advised  on  one 
point.  Roads,  his  plaintiff,  was  insolvent.  If  he 
lost,  away  went  the  plaintiff's  costs,  particularly  the 
clerk's  and  sheriff's  fees.  If  he  won,  the  defend 
ant  paid  Roads  —  and  their  costs. 

Dollars  and  cents  do  not  often  corrupt  courts 
nor  pollute  the  fountains  of  justice,  but  in  Dock- 
ery's  public  sentiment  factory  two  more  willing 
hands  were  enlisted.  Henceforth,  two  officials 
who  breathed  the  very  atmosphere  of  the  temple  — 
the  element  Dockery  was  trying  to  surcharge  — 
were  wondrous  kind,  and  emitted  these  and  similar 
predictions,  "  I  expect  Mr.  Dockery  will  get  a  big 
verdict." 

When  adjournment  time  came  Saturday  "  the 
Roads  case "  had  not  yet  been  called.  Lowden 
"  clogged  "  Judge  Cole's  "  wheels  of  justice  "  early 
that  afternoon,  and  dismissed  the  jury  until  Mon 
day  at  noon.  He  went  to  his  home  county  for  the 
Sunday.  Haggard  had  gone.  Judge  Yust,  Judge 
Beckwith,  and  all  the  visiting  attorneys  took  their 
departure,  with  one  exception  —  Lawyer  Dockery 


NISI  PRIUS  227 

remained.  He  had  no  witnesses  to  consult.  That 
task  had  been  performed  thrice  over.  Napoleon's 
Imperial  Guard  may  have  been  drilled,  but  Dock- 
ery's  valiant  legion  surpassed  them  in  service. 
Dockery  had  no  law  to  investigate,  for  he  was 
amply  versed  in  his  special  branch.  He  had  no 
rules  of  the  defendant  company  to  study,  for  he 
carried  in  his  omnipresent  green  bag  several  dog 
eared  books  belonging  to  that  corporation,  which 
he  knew  from  cover  to  cover. 

He  remained  over  Sunday  in  Greenwood  for 
none  of  these  things.  His  public  sentiment  factory 
did  not  require  his  presence.  The  wheels  of  that 
plant  were  all  now  rapidly  in  motion  and  the  prod 
uct  was  being  turned  out  in  large  quantities.  The 
five  thousand  dollars  he  had  "  scorned "  did  not 
need  his  further  attention,  nor  was  it  necessary  to 
again  take  Roads  driving  to  faint  —  at  a  juryman's 
gate.  Lawyer  Dockery  remained  over  Sunday  to 
put  in  motion  one  more  of  his  favorite  schemes  — 
the  pious  scheme. 

Dockery  was  what  is  called  "  a  prominent  fig 
ure  "  in  his  church.  To  it  he  had  quite  frequently 
contributed  —  other  people's  money.  A  fellow- 
townsman  had  told  at  Greenwood  that  if  the  com 
mittees  would  publish  that  Dockery  had  donated 
five  hundred  dollars  Dockery  would  quite  cheer 
fully  donate  fifty  dollars.  For,  be  it  known,  this 
astute  practitioner  distorted  the  Scriptural  admoni 
tion,  and  gave  ten  per  cent,  of  what  he  was  her 
alded  as  giving.  From  all  of  which  it  is  now  fully 
established  that  certain  artificial  persons,  created 


228  NISI  PRIUS 

and  organized  by  and  under  the  laws  of  the  Com 
monwealth  of  Kentucky,  from  year  to  year  opened 
their  bursting  coffers  to  home  and  foreign  missions 
and  other  worthy  causes  all  unconsciously. 

So  then  the  Hon.  Dockery,  on  this  serene  and 
lovely  Sunday  morning  in  June,  first  wended  his 
way  to  Sunday  school.  It  was  a  Methodist  church, 
which  boasted  of  a  large  and  influential  congrega 
tion.  His  pious  presence  was  soon  noted.  He 
contributed  his  mite  —  or  somebody's  —  when  the 
offering  was  made.  By  his  own  method,  he  suc 
ceeded  in  getting  himself  invited  to  "  make  a  little 
talk  "  to  the  children.  He  did  so.  His  voice  was 
soft  and  kind.  Jim  Hanna's  little  daughter,  next 
day,  said  to  her  father : 

"  Oh,  papa,  Mr.  Dockery  is  so  nice !  I  don't 
like  Mr.  Beckwith  like  I  do  Mr.  Dockery.  He 
made  us  the  nicest  talk  at  Sunday  school." 

Old  Jim  said  nothing,  but  thought  —  in  brim 
stone. 

The  Methodist  Sunday  school  being  over,  our 
pious  friend  drifted  —  by  pure  accident  —  to  the 
Baptist  church.  He  saw  to  it,  in  some  way,  that 
his  presence  and  his  prominence  were  both  made 
known. 

He  led  in  prayer. 

Old  Mrs.  Barton,  the  good  old  saintly  mother 
of  Juryman  Barton,  was  heard  to  say,  going  home : 

"  Isn't  Mr.  Dockery  a  good,  Christian  man  ?  " 

Sunday  afternoon  Dockery  went  for  a  walk. 
He  bowed  to  women,  smiled  at  men,  laughed  with 
children  —  as  much  as  he  could  laugh. 


NISI  PRIUS  229 

Sunday  evening,  supper  over,  he  wandered  aim 
lessly  about  and  by  another  mere  accident  stumbled 
into  the  Presbyterian  church.  He  knew  well  one 
of  the  elders.  He  was  at  once  ushered  up  to  the 
front. 

The  good  parson  was  absent  on  this  occasion. 
A  lay  member  talked  briefly  to  the  congregation, 
and  concluded  by  saying  that  Judge  Dockery,  one 
of  the  foremost  lawyers  of  the  State,  was  present. 
Judge  Dockery,  he  said,  was  not  a  Presbyterian, 
but  was,  nevertheless,  a  strong  church  member,  a 
great  power  for  righteousness  in  his  community. 
He  called  on  the  delighted  Dockery  for  some  re 
marks. 

That  worthy  acquiesced  in  the  request.  He 
spoke  on  what  he  denominated  "  Civic  righteous 
ness."  He  said  that  in  his  profession  he  was  often 
thrown  with  hard  men,  who  did  not  have  the  blessed 
peace  that  Christianity  offered  to  all.  And  in  this 
vein  he  preached,  even  as  he  had  done  since  Thurs 
day  morning,  the  cause  of  —  Roads  v.  the  Railroad. 

And  when  he  lay  upon  his  bed  that  night,  know 
ing  that  "  the  Roads  case "  would  be  called  for 
trial  the  following  day,  he  felicitated  himself  in  the 
congratulatory  reflections  that  thus  far  he  had  left 
no  stone  unturned.  And  then  he  slept  —  perhaps. 


CHAPTER  XXV 

SILAS  DOCKERY,  having  laid  sufficient  unction  to 
his  soul  on  Sunday,  was  on  deck  early  Monday 
morning.  Judge  Lowden,  defendant's  counsel 
Beckwith,  and  others  of  the  dramatis  personae  like 
wise  responded  present  when  the  roll  of  the  grind 
was  called. 

Shortly  "  Roads  v.  Railroad "  came  from  the 
bench,  and  the  green  bag  was  ushered  to  the  foot 
lights.  Dockery,  who  had  talked  and  talked  with 
his  witnesses,  saying  to  them,  inter  alia,  that  there 
were  "  different  ways  of  telling  the  truth,"  knew 
that  all  of  them  were  present.  However,  assum 
ing  the  contrary,  he  said: 

"  Your  Honor,  I  will  call  my  witnesses.  I  think 
they  are  here,  but  have  not  had  an  opportunity  of 
seeing  them  all." 

And  he  called  over  a  very  long  list,  including 
many  men  of  prominence.  Dockery  did  not  intend 
to  introduce  half  of  these  witnesses,  but  it  helped 
things  immeasurably  to  indicate  to  the  jury  that 
so  many  people  of  standing  were  "  lined  up  "  for 
the  plaintiff.  And  so  it  happened,  even  as  of  old, 
that  many  were  called  but  few  were  chosen. 

Finally  the  worthy  Dockery  announced  ready. 
Beckwith  did  likewise,  and  very  shortly  "  the 
Roads  case  "  was  under  trial. 

Responding  to  the  Court's  inquiry  as  to  whether 
counsel  desired  the  exclusion  of  the  witnesses, 

230 


NISI  PRIUS  231 

Dockery  —  who  had  thrice  the  number  had  by 
Beckwith,  and  whose  interest,  therefore,  would  be 
best  subserved  by  allowing  them  to  hear  the  trial 
—  with  his  pre-eminent  fairness  said : 

"  I  am  willing  for  these  gentlemen  to  remain  in 
side.  It  is  more  comfortable  than  standing  around 
on  the  outside." 

Judge  Beckwith,  notwithstanding  he  knew  how 
well  Dockery's  cohorts  had  been  drilled,  preferred 
to  have  them  testify  without  the  hearing  of  each 
other.  So  the  multitude,  quite  sullenly,  vacated 
the  room;  A  juryman  reflected  how  fair  was 
Dockery  and  how  strict  and  rigid  was  Beckwith. 

"  That's  what  I  call  an  audience  by  duress,"  re 
marked  Bill  Scott  to  Tom  Henderson. 

"What's  that,   Bill?"  asked  Henderson. 

"  Old  Dockery  must  have  an  audience.  They 
won't  come  voluntarily,  so  he  has  them  summoned 
as  witnesses  and  forces  them  to  stay." 

The  jury  being  chosen,  Roads  was  brought  in. 

The  accomplishments  being  now  pulled  off  were 
those  that  Marcellus  Jumpus  tried  to  initiate  in  the 
case  of  Hazel  v.  Blackwood  Coal  Co.,  of  which  we 
got  a  glimpse  in  the  earlier  pages  of  this  chronicle. 
It  will  be  recalled  that  Jumpus  did  the  thing  right 
well,  but  compared  to  the  present  actor  he  was  the 
basest  imitator.  Jumpus  tried  to  sympathize  with 
an  injured  plaintiff  and  tried  to  assist  him  about, 
whereas  Dockery,  the  past-master,  did  those  things. 

The  opening  statement  was  meager.  There  had 
been  some  ice  on  the  car  steps,  and  that  was  about 
all  his  auditors  grasped.  The  allegation  was  a 


232  NISI  PRIUS 

general  charge  of  negligence, —  avoiding  specifica 
tion, —  a  practice  recognized  and  permitted  in  Ken 
tucky.  It  did  not  confine  the  plaintiff  to  any  sin 
gle  act  of  negligence  designated  in  advance  of  hear 
ing  the  testimony,  but  afforded  him  the  opportu 
nity,  not  only  of  pressing  any  particular  act  of 
negligence  known  by  himself,  but  of  pouncing,  vul 
ture-like,  on  any  additional  failure  of  duty  suddenly 
appearing  in  the  trial. 

The  statements  being  concluded,  the  testimony 
began.  Printer's  ink  and  wood  pulp  are  too  dear 
to  warrant  a  detailed  account  of  the  different  ver 
sions  of  the  many  witnesses.  To  those  desiring  all 
the  evidence,  reference  is  here  made  to  the  tran 
script  of  testimony,  of  record  in  the  clerk's  office, 
as  made,  transcribed,  and  certified  by  S.  J.  Brown 
ing,  Esq.,  official  stenographic  reporter  of  the 
Mecklenberg  Circuit  Court.  The  x-ray  photo 
graphs  of  the  plaintiff's  bones  are  likewise  among 
the  archives. 

To  Henderson,  Doss,  and  others  among  the  ob 
servers  these  things  looked  like  mere  clouds  or 
blots  upon  a  glass  negative.  To  Dockery  they 
plainly  showed  the  "  exostosis  of  the  sacro-iliac," 
which,  on  being  interpreted,  means  (perhaps)  a 
bony  growth  or  formation  on  some  bone  in,  about, 
or  near  the  base  of  the  spine. 

Dockery,  ever  fair  and  honest,  offered  no  ob 
jection  to  any  question  put  by  Beckwith.  He  knew 
Beckwith  would  ask  few,  if  any,  incompetent  ones. 
He  himself  asked  the  most  ridiculously  incompetent 
questions.  When  Beckwith  objected,  this  is  what 


NISI  PRIUS  233 

he  invariably  met,  before  the  Court  could  rule,  "  I 
withdraw  it,  Judge.  I  don't  want  anything  that  is 
not  fair  and  right." 

And  so,  all  day  long,  these  things  were  with 
drawn —  from  the  record,  not  from  the  jury's 
minds.  At  each  objection  by  Beckwith  the  im 
pression  that  he  was  attempting  to  conceal  some 
fact  by  legal  technicality  gained  ground,  and  at 
each  generous  withdrawal  by  Dockery  his  eminent 
fairness  impressed  itself  upon  the  twelve  men  try 
ing  the  case. 

Toward  the  end  of  Dockery's  evidence  he  pro 
duced  a  letter  purporting  to  be  from  an  absent  wit 
ness  whose  name  had  been  called  several  times 
throughout  the  trial. 

"  Judge  Beckwith,  I  have  a  letter  here  from  Mr. 
Turley,  who  saw  all  this  thing.  I  tried  to  get  him 
here,  but  he  has  a  sick  boy  and  was  afraid  to  leave 
him.  I  told  him  you  would  accommodate  him  by 
letting  his  letter  be  used  as  his  deposition.  Turley 
is  a  fine,  honest  fellow  —  can't  you  agree  to  read 
his  letter  to  the  jury?  " 

Of  course  Beckwith  declined,  with  thanks. 

"  All  right,"  said  the  ever-smiling  Dockery.  "  It 
is  not  sworn  to,  and  you  can  prevent  its  reading  — 
if  you  insist.  I  thought  the  jury  would  like  to 
hear  Turley's  evidence." 

About  this  time  the  "  neurasthenia  "  got  in  its 
work,  and  Roads  was  presenting  a  model  illustra 
tion  of  masculine  hysteria  superinduced  by  a  col 
lapse  of  the  nervous  system.  Dockery  asked  that 
court  suspend  for  an  hour,  to  allow  Roads  time  to 


234  NISI  PRIUS 

collect  himself.  Lowden,  already  goaded,  declined 
to  entertain  this  suggestion,  and  presently  the  plain 
tiff  recovered  himself. 

Later  in  the  day  Dockery  suggested  that  per 
haps  the  jury  were  weary  and  would  like  a  recess 
of  thirty  minutes,  to  get  a  breath  of  fresh  air. 
Considerate  Dockery! 

He  finally  closed.  The  motion  for  a  non-suit, 
or  for  a  "  premp,"  in  local  parlance,  came.  It 
came  strong  and  fast.  Beckwith  was  armed  and 
equipped  for  this  encounter.  He  pressed  his  foe 
on  all  sides.  For  every  proposition  he  cited  re 
spectable  authority,  and  plenty. 

Dockery,  at  first  defiant,  grew  apprehensive.  A 
cold  wave  traversed  his  spine.  He  replied.  His 
reply  was  disjointed,  illogical,  scattering.  He  did 
not  himself  see  his  own  scintilla.  A  less  penetrat 
ing  jurist  would  have  sustained  Beckwith.  He  had 
Dockery  beat,  but  not  the  Court. 

Lowden's  ruling  was  that  the  train  porter  had 
sworn  it  was  his  duty  to  clean  the  car  steps  of  the 
ice;  that  he  had  noted  the  ice  on  the  steps,  and  had 
cleaned  it;  that  no  more  had  accumulated  after  he 
did  so.  Roads  swore  that  after  all  this  had  trans 
pired  he  had  fallen  on  the  ice.  There  was,  there 
fore,  some  evidence  that  the  ice  was  there,  and  that 
it  caused  the  fall.  Quite  true,  a  dozen  witnesses 
called  by  Dockery  on  other  points  stated  there  was 
no  ice  on  the  steps.  But  where  there  is  any  evi 
dence,  no  matter  how  slight,  it  is  the  province  of 
the  jury  to  pass  on  it.  Therefore,  the  Court  must 
submit  this  case  to  the  jury,  although  the  Court 


NISI  PRIUS  235 

might  be  of  the  opinion  he  would  set  aside  any 
verdict  they  returned  in  favor  of  the  plaintiff  — 
the  scintilla  doctrine,  a  thing  as  incongruous  as  it 
is  permanently  imbedded  in  the  jurisprudence  of 
Kentucky. 

When  Beckwith's  first  witness,  the  conductor, 
took  the  stand  the  clerk  was  out  when  directed  to 
swear  the  witness.  Dockery  knew  the  conductor 
would  state  nothing  material,  as  he  had  very  little 
knowledge  of  the  case. 

"  Don't  wait  on  the  clerk,"  said  Dockery.  "  I 
will  waive  the  swearing  of  Captain  Dodd.  He  is 
truthful  whether  sworn  or  not." 

And  so,  throughout  all  of  Beckwith's  testimony, 
Dockery  "  played  to  the  galleries,"  as  Scott  ex 
pressed  it.  The  evidence  was  concluded  when  the 
hour  for  adjournment  came.  The  motion  for  a 
non-suit,  being  renewed,  was  overruled.  The  jury 
were  admonished  with  unusual  force,  the  Court 
knowing  quite  well  some  methods  of  a  certain  at 
torney  engaged  in  the  trial. 

Next  morning  the  case  was  argued.  Beckwith, 
the  first,  was  strong,  forceful,  clean.  Dockery  fol 
lowed.  He  had  not  once  interrupted  his  opponent. 
He  who  has  the  last  speech  needs  not  to  do  so. 
When  Beckwith  objected  to  some  prejudicial  for 
eign  matter  in  Dockery's  speech,  the  latter  would 
say: 

"  I  withdraw  it  all.  I  never  objected  to  any 
thing  you  said,  Beckwith.  These  fellows  who  de 
fend  these  corporations  somehow  always  want  to 
hide  something  from  the  jury.  But  don't  you  con- 


236  NISI  PRIUS 

sider  what  I  said,  gentlemen,  if  Mr.  Beckwith  ob 
jects.  I  want  to  be  fair." 

And  on  he  went.  An  extract  will  not  be  out  of 
place. 

"  Gentlemen,"  he  said,  "  last  summer  I  broke 
down.  My  health  was  impaired  —  standing  in 
court-houses,  day  after  day,  month  after  month, 
year  after  year,  fighting  for  helpless,  crippled  peo 
ple  in  combat  with  giants  of  wealth  finally  broke 
down  my  health.  I  was  weak.  I  was  sick.  My 
doctor  said  to  me,  '  Dockery,  you  had  better  go  off 
somewhere  and  rest.'  I  could  hardly  get  away. 
Fatherless  children  and  noble  little  women,  widows, 
had  battles  to  fight.  Their  condition  appealed  to 
me.  In  my  prayers  I  asked  God  for  strength  to 
help  me  fight  these  great  and  powerful  corpora 
tions,  to  whom  this  twenty  thousand  dollars  we  are 
asking  for  is  as  a  penny  to  you  and  me. 

"  Finally,  I  went  away  to  rest.  I  went  up  on 
the  Hudson  River.  I  sat  on  the  deck  of  one  of 
those  magnificent  boats  as  we  glided  up  that  beau 
tiful  river.  I  saw  palaces,  kingly  mansions,  worth 
millions,  on  the  shore.  One  palatial  castle  struck 
me  in  particular.  I  inquired.  A  man  told  me 
whose  it  was.  He  was  one  of  the  directors,  gen 
tlemen,  in  this  great  railway.  I  thought  of  him 

and  of  poor,  crippled,  ruined  Roads Very 

well,  Mr.  Beckwith,  if  you  object,  I  will  withdraw 
it  all.  Don't  consider  it,  gentlemen.  I  don't  want 
my  friend  Beckwith  to  leave  the  court-house  think 
ing  I  have  been  unfair  to  him.  Beckwith's  a  splen 
did  lawyer  —  a  fine  fellow.  No  bigger  heart  any- 


NISI  PRIUS  237 

where  than  his.  I  know  from  little  things  he  has 
said  to  me  how  he  pities  poor  Roads.  And  I  know, 
if  Beck  with  had  his  way,  he  would  pay  Roads,  and 
this  case  would  not  be  here.  But  the  fellows 
higher  up,  in  the  counting-room,  control  that,  and 
Beckwith  is  here  righting  a  battle  against  this  crip 
pled  man  in  which  he  takes  no  heart. 

"  Oh,  gentlemen,  how  they  fear  and  despise  a 
jury!  In  legislatures  and  congresses  they  can 
lobby  and  pull  wires  and  manipulate,  and  before 
courts  they  can  split  hairs  and  raise  technicalities; 
but  get  'em  before  a  jury  of  plain,  honest  men,  how 
they  tremble!  Why,  my  friend  here  would  have 
made  most  any  sacrifice  to  have  induced  his  Honor 
on  the  bench  to  throw  this  case  out  of  court.  They 
fear  you  twelve  men,  who  can't  be  bluffed,  nor 
bought,  nor  misled.  And  well  they  might  fear  the 
people.  Do  you  know  how  many  thousands  of 
human  lives  and  limbs  are  yearly  sacrificed  to  their 
carelessness,  how  many  orphans  and  widows 

are Now,  Mr.  Beckwith,  I  did  not  interrupt 

your  argument.  But  consider  it  all  withdrawn,  if 
you  object.  Tom  Roads  had  rather  hobble  home, 
dragging  his  wrecked  body  to  a  bleak  and  desolate 
fireside,  penniless,  than  to  get  a  dollar  of  this  com 
pany's  money  by  anything  unfair." 

And  thus  he  proceeded  for  nearly  two  hours. 
His  speech  was  stenographically  reported.  Many 
objections  were  noted  and  exceptions  reserved;  and 
an  equal  number  of  withdrawals  and  admonitions 
by  the  Court,  telling  the  jury  not  to  consider  the 
matter  objected  to. 


238  NISI  PRIUS 

The  objections  and  exceptions  worked  more  det 
riment  than  benefit.  The  jury  treated  them  thus, 
"  It's  a  pity  Mr.  Beckwith  can't  be  as  fair  with  the 
jury  as  Mr.  Dockery."  The  Court  of  Appeals 
thus  disposed  of  them : 

"  Counsel  strongly  insist  on  the  misconduct  of 
the  plaintiff's  attorney  in  addressing  the  jury,  in 
that  certain  irrelevant  and  incompetent  statements 
were  injected  into  the  argument,  and  these  state 
ments  all  fully  appear  in  the  bill  of  exceptions. 
We  have  examined  these  extracts  from  the  attor 
ney's  argument.  They  were  altogether  irrelevant 
and  improper.  But  in  each  instance,  on  objection, 
they  were  withdrawn  and  the  jury  admonished  not 
to  consider  them.  We  cannot  indulge  the  presump 
tion  that  the  jury  did  not  heed  these  admonitions. 
On  the  contrary,  the  inference  is  just  the  op 
posite." 

Leaping  over  intervening  details,  a  long  story  is 
made  short  by  quoting  the  jury's  verdict,  concurred 
in  by  ten  members  thereof: 

"  We  the  jury  find  for  the  plaintiff,  and  fix  the 
damages  at  $9,878.00." 

And  the  "  home  office  "  of  Beckwith's  corpora 
tion  knew  of  the  trial  and  verdict  that  day,  and 
wondered  how  such  a  thing  was  possible.  They 
did  not  know,  however,  of  the  five  thousand  dollars 
"  spurned  "  offer  of  compromise;  the  Methodist  and 
Baptist  and  Presbyterian  churches;  the  illness  at 
Juror  Barton's  gate;  and  other  things  not  in  proof, 
but  known  by  the  twelve  who  sat  in  "  the  Roads 
case." 


NISI  PRIUS  239 

.'  And  they  were  an  honest  twelve,  every  man 
among  them.  Of  official  and  personal  integrity 
they  had  an  abundance.  Their  weakness  lay  only 
in  this  —  being  poorly  schooled  in  the  fine  and 
subtle  art  of  studying  human  nature;  from  which 
it  followed  that  sham  and  pretense,  wrapped  in 
the  cloak  of  virtue,  escaped  their  detection.  Not 
so  with  an  experienced  judge,  used  to  the  study  of 
men.  If  forty  Dockerys,  wearing  forty  cloaks, 
should  masquerade  in  his  presence  for  thirty  min 
utes  sham  and  pretense  would  be  visible,  and  lo! 
forty  scoundrels. 

And,  en  passant,  let  it  be  said  here,  you  "  friend 
of  the  great  common  people,"  do  not  go  hence  and 
denounce  this  observation  of  a  well-known  truth  as 
an  argument  against  the  ancient  and  priceless  sys 
tem  of  trial  by  jury.  One  may  point  out  defects 
in  a  structure,  not  as  an  argument  in  favor  of  de 
stroying  it,  but  with  the  hope  that  the  same  may  be 
cured  and  the  structure  thereby  made  more  durable 
and  enduring.  So,  if  any  of  Dockery's  kidney 
misquote  this  absent  chronicler, —  as  Dockerys  usu 
ally  do, —  kindly  file  an  answer  traversing  his 
averments,  pleading  the  truth,  not  for  Dockery's 
benefit,  but  for  those  like  the  twelve  in  "  the  Roads 
case,"  who,  not  penetrating,  might  be  humbugged 
by  the  cloak  he  wears. 


CHAPTER  XXVI 

COLE  was  insisting,  learnedly,  the  next  day  that  in 
the  case  of  Rice  v.  I.  C.  R.  R.  Co.  the  burden  of 
proof  was  on  the  plaintiff.  He  had  unlimited 
faith  in  a  last  address  before  the  jury.  Lowden 
was  convinced  that  Cole's  contention  was  correct, 
while  Colonel  Stevens,  for  the  company,  had  not 
even  suggested  otherwise.  There  were  two  com 
panion  cases  against  that  public  service  corporation, 
Rice  v.  I.  C.  R.  R.  Co.  and  Haggin  v.  I.  C.  R.  R. 
Co.  Judge  Cole  was  attorney  for  each,  and  had 
with  great  assurance  prepared  both  actions.  They 
were  actions  at  law  to  recover  seventy-five  dollars 
for  the  death  of  Rice's  cow  and  a  similar  sum  for 
the  death  of  Haggin's  cow.  The  cause  of  action 
sued  on  was  that  a  telegraph  operator,  in  the  serv 
ice  of  the  defendant,  had  carelessly  and  negligently 
thrown  a  quantity  of  bluestone  from  a  blockhouse; 
that  it  fell  on  the  green  and  inviting  bluegrass; 
that  the  grass  was  eaten  by  the  cows,  by  which  they 
were  poisoned,  and  from  the  effects  of  which  poison 
they  had  both  "  swelled  up,  drank  a  pond  dry,  and 
then  died."  The  two  causes  were  identical,  even 
to  the  extent  of  the  value  of  the  two  cows. 

Rice's  case  was  first  on  the  docket,  Haggin's 
next.  Both  Rice  and  Haggin  were  present.  Rice 
was  to  testify  for  Haggin  and  Haggin  was  to  tes 
tify  for  Rice,  from  which  it  will  be  seen  that  reci 
procity  is  not  confined  alone  to  political  economy. 

240 


NISI  PRIUS  241 

When  Rice's  case  was  called  Judge  Cole  an 
nounced  ready,  Lowden's  ruling,  giving  him  the 
conclusion  on  Stevens,  had  in  Cole's  opinion  dis 
posed  of  the  case.  The  trial  began.  Bill  Scott 
left  the  court-house.  He  said  he  would  return 
about  the  time  "  Old  Cole  charges  the  ramparts," 
which  belligerent  remark  related  to  the  plaintiffs' 
attorney's  speech. 

The  proof  was  clear  that  the  blttestone  had  been 
thrown  out  of  the  blockhouse.  It  was  established 
that  it  was  deadly  poison.  The  cows  were  seen 
grazing  there;  they  then  were  seen  rushing  to  a 
near-by  pond,  where  they,  knee  deep,  drank  until 
their  bellies  came  near  bursting.  Then  they  died. 

It  was  shown  that  bluestone  affected  animals  just 
this  way.  The  twofold  inquiry  of  negligence  or 
no  negligence  and  whether  the  cows  were  actually 
killed  by  the  chemical  was  submitted  to  the  jury. 
Stevens  argued  his  defense  as  best  he  could.  He 
and  those  in  attendance  took  it  for  granted  the 
jury  would  decide  both  questions  against  the  de 
fendant.  He  threw  in  some  suggestions  about 
cows  being  allowed  to  stray  on  other  people's  prop 
erty;  the  probability  of  them  eating  bluegrass  and 
the  improbability  of  their  eating  a  bitter,  uninvit 
ing  poison. 

Judge  Cole  followed  —  and  pursued  him.  He  at 
once  got  his  elevation,  and  retained  it.  Rice 
looked  at  his  lawyer  in  unconcealed  admiration. 
Old  man  Haggin,  a  stern,  severe  man,  softened  as 
Cole  "  laid  it  on."  He  reflected  to  himself,  "  He'll 
blister  'em  in  my  case  the  same  way." 


242  NISI  PRIUS 

When  Cole  concluded,  Stevens  congratulated 
him. 

"  Great  argument,  Cole,"  said  he.  "  I  suppose 
they  will  not  take  long  to  make  me  pay  you  that 
seventy-five  dollars." 

"  Plain  case,  Colonel,  plain  case,"  replied  the 
gratified  advocate. 

And  the  jury  passed  out. 

The  Court  called  attention  to  the  presence  of  a 
person  of  unsound  mind  who  was  to  be  tried,  say 
ing  he  would  defer  the  calling  of  Haggin's  case 
for  a  few  minutes,  until  the  lunacy  case  could  be 
disposed  of,  and  took  that  matter  up  at  once. 

Old  Haggin  saw  only  that  his  case  was  not 
called.  He  motioned  to  Cole  and  asked, 

"  When  will  my  case  be  tried  ?  " 

He  was  a  man  abounding  in  suspicion,  and  firmly 
believed  that  every  lawyer  was  apt  to  "  go  over  to 
the  other  side  "  at  any  minute.  Cole  assured  him 
that  his  case  would  soon  be  called,  and  then  strolled 
over  near  the  bench,  where  Stevens  and  Lowden 
were  chatting,  pending  the  well-worn  formalities 
of  a  lunacy  inquest. 

"  Cole,"  said  Lowden,  "  you  made  a  capital  ar 
gument  in  that  case,  capital  argument." 

"  I  just  told  him  the  jury  would  promptly  agree 
with  his  theories  and  his  figures,"  joined  in  Stevens. 

"  What's  the  use  in  going  through  a  trial  of 
Haggin's  case  ?  "  said  the  Court.  "  The  two  cases 
are  similar  in  every  way." 

"  Pay  me,  Stevens,"  said  Cole.  "  You  know 
I've  got  you  where  the  wool  is  short." 


NISI  PRIUS  243 

"  Yes,  but  I  like  to  see  you  earn  your  money," 
responded  Stevens. 

"  Why  don't  you  agree,"  interposed  the  docket- 
clearer,  "  to  let  the  verdict  in  the  Rice  case  be  taken 
as  the  verdict  in  the  Haggin  case?" 

"  In  other  words,"  objected  Stevens,  "  why  don't 
I  simply  hand  over  the  money  to  Cole  without 
trial?" 

"  Come  on,  Colonel,"  insisted  Cole,  pressing  the 
point,  "  be  game.  I  never  knew  you  had  feathers 
on  your  legs  before." 

"  What's  the  use,"  insisted  Lowden,  "  in  trying 
both  the  cases,  when  all  the  facts  in  one  are  the 
facts  in  the  other?  " 

"  The  Colonel  in  a  game  of  draw  poker  would 
lay  down  fours,  if  the  other  fellow  pushed  in  his 
stack,"  taunted  Cole. 

"  Well,  I'm  giving  you  the  money,  but  I  can't 
oppose  the  plaintiff's  lawyer  and  the  Court  too," 
said  Stevens.  "  I'll  agree  to  it." 

"  Draw  the  order,"  joyfully  assented  Rice's  and 
Haggin' s  attorney. 

Thereupon,  this  order  was  quickly  prepared : 
"  Mecklenberg  Circuit  Court. 

"  Haggin        j 

v.  !•  Order. 

I.  C.  R.  R.  Co.    ) 

"  By  consent  of  the  parties  to  this  action,  made  in 
open  court,  it  is  agreed  that  the  verdict  and  judg 
ment  in  the  case  of  Rice  v.  I.  C.  R.  R.  Co.,  now 
under  consideration  by  the  jury,  shall  be  taken  and 
entered  as  the  verdict  and  judgment  in  this  cause." 


244  NISI  PRIUS 

Both  lawyers  "  OK'd "  the  order,  the  Court 
scrawled  "  Enter  L  "  on  it,  and  immediately  it  was 
delivered  to  the  clerk.  And  the  trio  continued  to 
chat,  in  undertone,  while  the  County  Attorney  was 
examining  some  witnesses  touching  the  inquiry 
whether  the  person  of  unsound  mind  was  an  idiot 
or  a  lunatic. 

Old  man  Haggin  sat  upright  and  stiff,  waiting 
the  calling  of  his  case. 

"  Drat  the  delay  of  these  courts !  "  he  reflected. 
"  I  want  to  get  my  money  and  get  away  from  here." 

He  beckoned  one  of  his  witnesses  and  was  im 
pressing  certain  points  upon  his  understanding. 
Cole,  Stevens,  and  Lowden  still  chatted.  Mr.  Hag- 
gin  thought  his  lawyer  could  do  something  to  hurry 
the  trial. 

Anon,  footsteps  of  twenty- four  feet  were  heard. 
The  jury  in  the  Rice  case  was  returning  with  a 
verdict.  Stevens  prepared  himself  to  hear  the 
words  he  had  long  since  become  accustomed  to; 
Judge  Cole,  having  that  last  speech  still  in  mind, 
stood  modestly  by  to  receive  his  laurels. 

The  verdict  read  thus: 

"  We,  the  jury,  find  for  the  defendant. — CASPER 
HICKS,  Foreman." 

"So  say  you  all,  gentlemen?"  came  from  the 
Bench.  Affirmative  nods,  and  then :  "  You  may  be 
excused  from  the  further  consideration  of  this 
case." 

Cole  sat  down. 


NISI  PRIUS  245 

Lowden  watched  him.  He  stared,  dazed,  at 
the  blank  wall.  Presently  the  Court  noted  him 
turn  his  head  slightly  and  look  at  old  Haggin. 
Then  it  seemed  to  Lowden  a  shiver  passed  over 
Cole's  dejected  frame. 

"  Wright  v.  Jowling  Tie  Co.,"  called  Lowden, 
still  further  studying  Cole's  countenance. 

Old  man  Haggin  beckoned  to  Judge  Cole,  who 
pretended  not  to  observe  it.  He  beckoned  again, 
but  by  this  time  Cole's  back  was  to  him.  No  look 
ing  around  for  him;  nor  would  Lot's  wife,  so  cir 
cumstanced.  Judge  Cole  wanted  time  to  think. 
He  had  to  have  it. 

Presently  old  Haggin  got  up  and  crossed  over  to 
Cole.  "  Cole,"  he  whispered,  "  when  are  you  goin' 
to  try  my  case  ?  " 

"  Eh  —  well  —  eh  —  Mr.  Haggin,"  attempted 
trouble's  victim,  "  it  can't  be  tried  now  —  not  just 
now." 

"Why  not?"  pressed  the  relentless. 

"  Little  pleadin'  to  do,  you  know ;  delays  matters 
—  some,"  faltered  Cole. 

"  What  pleadin'  ?  "  his  client  insisted. 

"  Technicality  —  pure  technicality.  Hard  to  ex 
plain,"  replied  Cole. 

"When  will  it  be  called?"  asked  Haggin.  "I 
want  my  case  tried.  Rice's  losin'  don't  bother  me." 
Then  whispering,  "  Five  of  them  jury  is  my  best 
friends.  You  try  my  case.  I'll  attend  to  the  rest 
of  it." 

"  Better  continue  it  until  I  can  see  further,"  sug 
gested  the  now  limp,  last-speech  advocate. 


246  NISI  PRIUS 

"  Don't  want  it  continued ;  never  consent  to  it  in 
the  world,"  said  Haggin.  "  It  was  Rice's  time  to 
continue,  not  mine,  when  I've  got  all  them  friends 
on  the  jury.  Call  it  up  when  they  get  done  with 
this  sparrin'  in  Wright's  case." 

"  Might  be  disastrous ;  you  can't  tell,"  ventured 
the  desperate  Cole.  "  Better  put  it  off." 

"What's  Colonel  Stevens  going  away  for?"  de 
manded  old  Haggin,  as  Stevens  gathered  up  his 
books  and  file,  got  his  hat  and  left  the  court-room. 
"  Don't  he  know  my  case  is  next  ?  " 

"  Yes  —  no.  He  had  to  take  his  books  away. 
You  know,  books  get  lost  left  around  here.  He 
knows  all  about  the  situation  —  all  about  it.  But 
you  see  it's  a  technical  question." 

"  Damn  all  that !  "  said  the  old  man,  now  visibly 
angering.  "  I  want  that  cow  case  tried  —  now." 

If  hope  springs  eternal  in  the  human  breast, 
there  are  times  in  the  tide  of  men's  affairs  when  it 
dies  —  after  awhile. 

Cole  was  on  a  great  sinking  ship.  The  waves 
had  gone  over  the  deck  and  he  had  climbed  to  the 
tower.  They  had  crept  up  about  him  there  and 
he  had  scaled  to  the  very  top  of  the  mast.  The 
ship  then  had  beached,  and  only  his  head  emerged 
from  the  gurgling  waters. 

It  was  then  he  confessed.  He  informed  the  old 
man  that  he  had  agreed  with  Stevens  to  permit  the 
verdict  in  the  Rice  case  to  be  the  verdict  in 
Haggin's  case. 

"  What  ?  "  screamed  Haggin. 

The  old  man  looked  at  Cole.     He  motioned  him 


NISI  PRIUS  247 

out  of  the  court-house.  As  they  went  away  Low- 
den  thought  Cole  was  withering  away. 

Ah,  if  Rice  had  won!  Cole  would  have  been 
the  wisest  and  best  of  lawyers.  Haggin,  success 
ful  plaintiff,  would  have  rejoiced  and  given  praise 
unto  his  name.  All  of  which  calls  to  mind  a  trite 
and  altogether  true  saying  to  the  effect  that  noth 
ing  in  this  wide,  wide  world  succeeds  like  success. 

About  noon  that  day  a  certain  old  man,  who  had 
had  a  fine  Jersey  heifer  killed  by  the  railroad,  wan 
dered  into  Captain  Henry's  law  office  and  said  to 
that  worthy: 

"  I  want  to  hire  you  to  get  a  new  hearin'  in  my 
cow  case." 


CHAPTER  XXVII 

"  I  BELIEVE  Lowden  will  hold  that  our  man  has  an 
equitable  lien  on  that  property,"  said  Brownlow, 
as  he  and  Henderson  sat  in  their  office  that  after 
noon,  talking  of  a  certain  chancery  case. 

"  Well,"  replied  Henderson,  "  you  have  read  that 
tenth  Bush  case,  and  it  strikes  me  it's  on  all-fours 
with  our  case.  Does  she  say  in  her  deposition  that 
he  promised  to  have  the  deed  made  to  her  ?  " 

"  Not  as  satisfactorily  as  I  should  have  pre 
ferred,"  rejoined  Brownlow;  "but  when  I  got  to 
that  point  I  lived  days  while  she  was  testifying." 

And  the  lawyers  continued  this  discussion  until 
interrupted  by  the  unannounced  entrance  of  a 
young  man,  perhaps  six  and  twenty,  who  "  had  a 
case." 

Thomas  Barton,  defendant  in  a  divorce  proceed 
ing,  desired  the  advice  of  counsel. 

"  Ellen  has  sued  me  for  a  divorce,"  he  began, 
"  and  I  ain't  objectin'  to  that,  particular.  It's  this. 
Her  father  and  mother  are  at  the  bottom  of  her 
leaving  me,  and  they  tell  me  you  can  make  a  man 
pay  for  separatin'  man  and  wife.  I  ain't  no  law 
yer,  but  if  there's  any  way  to  get  at  'em  I'd  like 
powerful  to  do  it." 

"  You  want  to  sue  the  girl's  father  and  mother 
for  alienating  your  wife's  affections,  is  that  it?" 
asked  Bro\vnlow. 

248 


NISI  PRIUS  249 

"  I  guess  that's  what  you  call  it,"  responded  the 
prospective  client. 

"  Sit  down,"  suggested  Henderson,  "  and  let  us 
have  all  the  facts.  First,  is  the  old  gentleman 
worth  enough  property  out  of  which  you  could  col 
lect  your  judgment,  if  you  got  one?" 

"  He's  got  three  good  farms,"  informed  Barton, 
"  and  plenty  of  stuff  besides." 

"Well,"  said  Brownlow,  "let's  have  all  the 
facts  —  all  of  them.  Those  against  you  more 
fully  than  those  for  you." 

"  Well,"  began  the  applicant  for  legal  advice, 
"  it's  a  short  story.  Ellen  and  me,  we  got  married 
three  years  ago.  I  bought  a  place  and  was  trying 
to  pay  for  it.  We  had  to  work  hard,  and  I  think 
this  didn't  suit  the  old  folks  at  all.  They  got  down 
on  me,  and  I  am  satisfied  they  persuaded  her  to  do 
what  she  done.  She  first  used  to  go  home  and 
stay  several  days  at  a  time.  I  could  see  she  was 
gettin'  dissatisfied.  Then  she  went  oftener.  One 
day  she  went  away.  She  cried  that  day  when  she 
left  —  and  kissed  me  good-by.  That's  the  last  I 
know  of  her  until  they  served  them  papers  on  me 
—  the  divorce  business.  Of  course  if  she  wants 
a  divorce  and  don't  want  to  live  with  me  it's  all 
right;  but  the  old  man  and  the  old  woman  per 
suaded  her  to  do  all  this.  She  never  would  have 
done  it  if  they'd  let  her  alone.  Her  mother  owns 
half  of  the  property,  and  they  tell  me  I've  got  to 
sue  'em  both." 

"  Did  anybody,  as  far  as  you  know,"  inquired 
Brownlow,  "  ever  hear  either  the  father  or  the 


250  NISI  PRIUS 

mother  speak  to  your  wife  unkindly  concerning 
you?" 

"  Not  that  I  know  of,"  answered  Barton. 

"  Did  they  ever  say  anything  to  her  in  your 
presence  reflecting  on  you  ? "  asked  the  senior 
member. 

"  No." 

"  Do  you  know  any  person  by  whom  you  can 
prove  any  fact  showing  they  induced  your  wife  to 
leave  you  ?  " 

"  No,  I  do  not,"  answered  Barton. 

"  Have  you  any  notes  or  letters  written  by  either 
the  father  or  mother,  on  the  subject?"  examined 
Henderson. 

"  None  at  all." 

"  How  do  you  expect  us  to  bring  such  a  suit 
with  no  evidence  at  all  ?  "  asked  Brownlow. 

"  Don't  know.  They  told  me  Tom  Henderson 
was  the  man  to  see." 

"  Can  we  sue  them  both,  Brownlow  ? "  asked 
Henderson.  "  I  mean  can  we  sue  the  father  and 
mother  jointly  for  alienation?  I  doubt  it." 

"  No  doubt  about  that,"  rejoined  Brownlow. 
"  They  are  joint  tort-feasors.  Their  joint  and 
combined  acts  produced  this  separation.  You  may 
sue  either  or  both,  and  the  jury  may  find  against 
either  or  both.  Been  clearly  decided.  But,  thus 
far,  we  haven't  enough  evidence  to  get  to  the  jury. 
We  can't  get  a  verdict  on  your  suspicion,  Barton. 
You  must  connect  the  old  folks  in  some  way  with 
the  separation." 

"  I  know  they  put  her  up  to  it,"  said  the  hus- 


NISI  PRIUS  251 

band ;  "  but,  come  to  think  of  it,  there  ain't  no 
proof." 

"  Do  you  want  her  to  come  back  to  you?  "  asked 
Henderson. 

"  Yes ;  but  she  will  never  do  it,"  answered  Bar 
ton. 

"  Are  you  sure  she  will  not  come  back,  if  you 
insist?"  asked  Henderson. 

"  Oh,  I  know  she  won't,"  he  replied. 

"  Did  you  ever  mistreat  her,  or  abuse  her,  or 
neglect  her?"  asked  Brownlow. 

"  Never  did.     Never  had  a  cross  word." 

"  Did  you  ever  go  home  drinking  or 


"  Never  touched  liquor  in  my  life,"  interrupted 
Barton. 

"  How,  then,  do  you  account  for  her  leaving 
you?"  insisted  Henderson. 

"  She  just  got  tired  of  me.  Before  the  old 
folks  interfered  she  was  satisfied.  They  dissatis 
fied  her.  I  know  it." 

"  There's  the  rub,"  said  Brownlow.  "  A  most 
excellent  case,  plenty  of  property  to  compensate 
you  —  if  you  had  any  proof  that  they  had  anything 
to  do  with  it.  What  do  you  say,  Tom?" 

"  Good  case,"  replied  Henderson,  "  only  lacking 
in  one  thing,  which  is  everything  —  evidence.  You 
are  not  going  to  resist  the  divorce  case,  are 
you?" 

"  Well,  I  haven't  got  any  lawyer  in  that  case, 
hoping  they  would  let  her  alone  and  maybe  she'd 
come  back." 

"  Well,"  said  Henderson,  "  that's  all  we  can  do 


252  NISI  PRIUS 

now.  Drop  in  here  in  an  hour  from  now  and  we 
will  see  what  can  be  done." 

Barton  took  his  departure,  and  Brownlow  re 
sumed  his  investigation  of  the  chancery  case,  in 
which  the  partners  were  engrossed  when  the  dis 
turbed  young  husband  entered. 

"  Nothing  to  that  case,  Tom,"  said  Brownlow. 
"  No  evidence  at  all.  Better  tell  Barton  so  right 
now." 

"  Perhaps  you  are  right,"  said  Henderson,  as  he 
walked  to  and  fro  the  length  of  the  office. 

And  so  they  worked,  Brownlow  on  the  case  in 
chancery,  Henderson  on  Barton's  case,  walking  to 
and  fro. 

In  less  than  an  hour  Barton  returned. 

"  Barton,"  said  Henderson,  "  can  you  give  me 
the  names  of  ten  or  twelve  first-class  men  out  in 
your  neighborhood  who  know  you  and  your  wife, 
and  who  would  like  to  see  the  divorce  case  dropped 
and  you  two  reconciled  ?  " 

"  Easy,"  said  Barton,  who  proceeded  to  name  a 
dozen  neighbors,  all  of  whom  were  known  to  be 
substantial,  trustworthy  citizens. 

"  Now,"  resumed  Henderson,  "  you  sit  there  at 
that  desk  and  write  these  letters  exactly  as  I  dictate 
them." 

Barton,  thus  guided,  wrote  these  two  letters: 

"  DEAR  ELLEN  : 

"  I  am  very  unhappy  in  my  present  state.  I  im 
plore  you  to  come  back  to  me.  I  never  in  any  way 


NISI  PRIUS  253 

wronged  you.     Will  you  not  drop  all  these  divorce 
proceedings  and  come  home?     Answer. 

"  Faithfully, 
"  TOM  B." 

"  DEAR  MR.  AND  MRS.  GATES  : 

"  I  am  hoping  Ellen  will  drop  the  divorce  case 
and  come  back  to  me.  Won't  you  use  your  influ 
ence  to  that  end?  I  have  never  in  any  way  mis 
treated  your  daughter. 

"  Truly, 

"Tnos.  BARTON/' 

"What's  the  use  of  all  this?"  said  Barton,  as 
he  signed  the  letters. 

"  Do  as  your  doctor  says,"  replied  Henderson. 
"  Address  and  mail  both  of  these  letters.  Have 
you  ever  mentioned  to  any  person  your  determina 
tion  to  sue  Mr.  and  Mrs.  Gates  about  this  matter?  " 

"  Only  to  Henry  Hughes.  He's  the  fellow  who 
sent  me  to  you." 

"  You  see  Hughes  now,  and  caution  him  about 
absolute  secrecy.  Don't  intimate  to  any  other  per 
son  that  you  have  the  slightest  idea  of  bringing 
such  an  action," 

Barton,  in  mystery,  agreed. 

"  Now,"  continued  Henderson,  "  you  go  direct 
to  these  twelve  men,  whose  names  you  have  given 
to  me,  and  to  each  one  say  this,  and  this  only: 
'  My  wife  has  left  me.  She  has  sued  for  divorce. 
I  want  the  trouble  dropped,  the  divorce  case  aban- 


254  NISI  PRIUS 

doned,  and  ourselves  happily  reconciled.  Won't 
you,  as  a  mutual  friend,  go  over  to  Mr.  Gates'  and 
try  to  induce  her  to  come  back  to  me?  Also  talk 
with  her  father  and  mother,  asking  them  to  use 
their  influence  for  a  reconciliation.'  When  you 
have  told  them  this,  urge  them  to  do  it  at  once. 
When  the  twelve  friends  have  interviewed  your 
wife,  Mr.  and  Mrs.  Gates,  go  to  each  man,  get  his 
report  of  their  answer,  and  then  come  to  Green 
wood  and  let  us  have  it.  Do  exactly  as  we  tell 
you,  and  do  it  quickly." 

"  But  how  about  my  case  ?  "  asked  the  wonder 
ing  Barton. 

"  When  you  return,  we  will  talk  that  over. 
Hurry  and  do  as  we  suggest." 

Leaping  over,  temporarily,  the  last  few  days  of 
the  June  term,  to  which  we  shall  return  directly, 
Barton  reported  in  several  days.  He  was  as  mys 
tified  as  ever.  He  had  mailed  the  two  letters,  as 
directed.  He  had  received  no  replies.  The  twelve 
neighbors  had  been  seen,  as  directed.  They  had 
called  on  the  Gates  family;  had  failed  signally  in 
their  mission,  and  reported  divers  experiences. 

The  twelve  men  made  twelve  separate  reports. 
Added  together  the  twelve  statements  contained 
these  facts: 

Called  and  found  Mr.  and  Mrs.  Gates  and  Ellen. 
Brought  up  subject  of  reconciliation.  Ellen  said 
that  was  what  she  wanted.  Mr.  Gates  refused  to 
listen  to  such  a  suggestion.  Mrs.  Gates  said  it 
had  taken  Mr.  Gates  and  herself  two  years  to 
show  Ellen  what  a  no-account  specimen  Barton 


NISI  PRIUS  255 

was.  Mr.  Gates  said  the  silly  little  fool  would 
never  have  left  Barton  if  he  and  her  mother  had 
not  simply  taken  the  bull  by  the  horns.  They 
knew  what  was  best  for  their  daughter.  They 
had  finally  induced  her  to  leave  him,  and  they 
would  never  consent  to  her  going  back  to  him. 
They  had  a  letter  from  Barton  the  other  day,  and 
Ellen  had  one  the  same  day,  but,  fearing  the  girl 
would  weaken  and  do  something  she  would  regret, 
they  destroyed  her  letter  and  told  her  of  it  after 
ward.  They  saw  two  years  ago  that  he  was  not 
the  man  for  Ellen,  and  they  made  up  their  minds 
then  to  get  her  away  from  him.  She  cried  and 
went  on,  but  she's  always  been  an  obedient  daugh 
ter,  and  finally  saw  we  were  right.  The  lawyer 
says  we  may  have  to  wait  a  year  before  she  can 
get  the  divorce,  but  we  will  just  wait.  Grateful 
for  neighbors  trying  to  patch  the  thing  up,  but  it 
can't  be  patched  up.  The  girl  would  make  up  with 
him  in  a  minute,  but  she  married  young,  and  doesn't 
know  her  own  mind. 

And  so  the  twelve  reported,  each  adding  a  de 
tail  or  two,  but  in  the  main  their  reports  were 
identical. 

When  Barton  concluded  his  report  he  said: 

"  Now,  about  the  other  matter,  what  about 
that?" 

"What  other  matter?"  asked  Henderson. 

"  My  suit  against  the  old  folks,"  said  he. 

"  You  have  won  it,"  said  Henderson. 

"  Won  it !  Then  have  you  found  any  wit 
nesses  ?  "  inquired  obtusity. 


256  NISI  PRIUS 

"  Just  twelve, —  these  twelve, —  and  most  excel 
lent  ones,  too.  They  know  all  the  details, —  all, — 
and  learned  them  from  the  mouths  of  the  defend 
ants  themselves.  O  Brother  Gates  and  Sister 
Gates,  you  have  talked  too  much,"  and  the  adroit 
though  legitimate  evidence  finder  laughed  merrily. 

The  dazed  Barton  saw  it  all,  and  wondered  why 
so  simple  a  thing  had  not  occurred  to  himself. 

Brownlow,  who  worshiped  at  the  shrine  of  Hen 
derson,  glowed  with  pride. 

"  Worthy  of  Quirk,  Gammon,  and  Snap,"  he 
said. 

"  I  object,"  replied  Henderson.  "  Nothing  was 
manufactured  or  created.  There  will  be  no  false 
swearing,  or  even  exaggeration.  Only  the  truth 
will  be  used.  Sometimes  it  is  difficult  to  dig  up 
the  truth.  A  fact  exists,  but  you  can't  prove  it. 
Here  were  myriad  facts,  strong,  potent,  controlling 
facts,  lying  dormant,  concealed,  buried.  We 
merely  throw  off  the  lid  and,  behold!  a  treasure. 
Don't  associate  that  with  making  evidence.  We 
made  none.  It  was  already  made.  We  only 
found  a  means  of  showing  to  a  jury  that  which  al 
ready  existed.  It  is  never  questionable  to  present 
the  simple  truth." 

When  the  summons  was  served  on  old  man 
Gates  and  his  busy  wife,  and  they  had  become  ac 
quainted  with  the  nature  of  the  suit,  the  wife,  once 
an  industrious  matchmaker,  now  the  contrary,  said, 
with  considerable  bravado : 

"  I'd  like  to  see  him  prove  any  of  that  stuff.  I 
would." 


NISI  PRIUS  257 

"  So  would  I,"  added  her  co-defendant. 

Then  his  countenance  lengthened.  Something 
dawned  upon  him  that  instant.  He  saw  the 
twelve  neighbors  file  by,  one  by  one,  in  his  mind's 
eye.  Ah,  they  were  being  sworn  to  testify  as  wit 
nesses  against  him. 

"Damn  that  young  Henderson!"  he  growled. 

Eventually  the  case  of  Barton  v.  Gates  was 
tried.  It  originated  at  the  June  term,  and  with  its 
origin  alone  can  these  pages  deal.  Chronicles  of 
other  sittings  of  the  Mecklenberg  assizes  must  tell 
of  the  ultimate  conclusion  of  this  case  —  discov 
ered,  not  created,  by  Barton's  lawyer. 


CHAPTER  XXVIII 

THURSDAY,,  the  sixteenth  day  of  the  term,  dawned 
clear  and  beautiful.  Motions,  growing  less  numer 
ous,  indicated  that  the  June  term  was  on  the  wane. 
Tobias  Mathews  was  trying  his  Russell  case. 
Those  attorneys  who  had  causes  following  the  Rus 
sell  case  did  not  vacate  the  court-room,  notwith 
standing  the  fact  the  defendant  had  quite  an  array 
of  witnesses  in  that  case  and  the  plaintiff  had  not 
yet  closed.  They  had  heard  Russell  himself  tes 
tify,  and  thought  they  saw  the  handwriting  on  the 
wall.  In  short,  it  was  freely  thought  that  when 
soever  Mathews  announced  through  for  the  plain 
tiff,  then,  in  a  few  brief  moments,  the  next  case  on 
the  docket  would  be  called. 

And  here  is  how  their  prophecies  were  verified. 
Mathews  had  sued  the  Diamond  Coal  Co.  for  and 
on  behalf  of  one  J.  Russell  for  damages  for  per 
sonal  injury.  In  some  way,  to  this  deponent  alto 
gether  unknown,  Mathews  had  run  the  gamut  of 
demurrers,  and  had  stated  a  valid  cause  of  action. 
Russell  alleged  that  he  had  been  a  driver  in  the 
mine  operated  by  the  defendant;  that  while  in  the 
line  of  his  duty  he  was  driving  a  mule  along  the 
track,  pulling  a  car  of  coal;  that  he  was  on  a  de 
scending  grade;  that  the  mule  was  trotting  when 
suddenly  the  mule  stumbled  in  a  large  hole  in  the 
track  and  fell,  throwing  the  plaintiff  violently  to 

258 


NISI  PRIUS  259 

the  ribs  of  the  mine,  seriously  injuring-  him,  etc., 
etc. ;  that  the  plaintiff  did  not  know  of  the  afore 
said  hole,  was  a  new  and  inexperienced  serv 
ant,  etc. 

Russell  got  through  swimmingly  on  the  direct 
examination.  He  elaborated  his  injuries,  touch 
ing  lightly  the  facts  of  the  manner  of  the  accident. 
Mathews  had  rather  proudly  turned  his  client  over 
for  cross-examination.  Knox,  for  the  defendant, 
with  a  sinister  and  subtle  smile,  began  gently. 
And  'here  is  why  some  other  cases  on  that  day's 
docket  were  called  earlier  than  they  might  have 
been. 

"You  say  there  was  a  deep  hole  between  the 
rails  of  the  track?"  asked  Knox. 

"  Yes,  there  was,"  answered  Russell,  with  his 
eyes  fixed  on  Mathews. 

"  And  that  hole  caused  the  mule  to  fall  and  thus 
injured  you?  " 

"  That's  what  I  said." 

"  Now,  Mr.  Russell,  isn't  it  true  there  was  no 
hole  there  at  all  ?  " 

"  No,  it  ain't  true.  Biggest  kind  of  a  hole 
there." 

"You  are  quite  sure?" 

"  Of  course  I'm  sure.  I  saw  it  there  every  day 
for  two  months.  Used  to  eat  my  dinner  there 
every  day." 

"  Isn't  it  true  you  never  saw  it  there  until  the 
day  of  the  accident?  " 

"  Saw  it  every  day,  I  tell  you.  Eat  dinner  there 
by  it  forty  times." 


2<5o  NISI  PRIUS 

"  And  did  you  really  know  it  was  there  every 
day  for  months  before  the  accident?  " 

"  I  sure  did ;  you  couldn't  help  but  see  it." 

"  Now,"  pursued  the  relentless  Knox,  "  you 
know  you  never  saw  it  before,  and  you  know  it 
was  not  there  before.  If  so,  why  didn't  your  mule 
fall  in  it  before  this  day?" 

"  I  say  it  was  there.  I  always  slowed  down 
when  I  got  to  it.  You  can't  make  me  say  that 
hole  wasn't  there,  for  I  know  it  was  there." 

Now,  discriminating  reader,  if  the  truth  must 
be  told,  know  that  Russell  had  not  seen  the  said 
hole  at  all;  never  ate  dinner  near  it,  never  avoided 
it,  and  never  knew  of  it  until  the  day  of  this  acci 
dent.  This  was,  as  you  have  divined,  the  very 
cause  of  action  sued  on,  the  actual  existence  of  the 
hole,  unknown  to  the  plaintiff.  Knox,  however, 
so  framed  his  questions  that  Russell  conceived  the 
idea  he  would  "  ruin  his  case  "  unless  he  took  the 
opposite  view  of  the  defendant's  counsel.  Had 
Knox  asked: 

"  You  say  you  knew  nothing  of  the  hole  until 
you  were  injured?"  his  response  would  have  been 
that  he  had  not  known  of  it.  But  the  adroit  cross- 
examiner  saw  fit  to  apparently  antagonize  the  wit 
ness  by  saying: 

"  Isn't  it  true  there  was  no  hole  there  at  all,  and 
you  never  had  seen  such  a  thing?" 

The  witness,  indulging  the  thought  that  it  would 
never  do  to  make  any  admissions  to  opposing  coun 
sel,  to  save  himself  promptly  lied,  thereby  ruining 
himself.  Strange  anomaly!  With  truth  from  his 


NISI  PRIUS  261 

own  lips  victory  was  his;  whereas,  he  lost  by  his 
own  lie.  Litigants  —  unhappily  —  not  infrequently 
win  by  false  testimony;  but  the  cause  is  rare  where 
they,  having  won,  in  an  instant  lose  by  false  testi 
mony. 

Mathews  closed.  Then,  through  a  haze,  he  was 
looking  at  Judge  Lowden  and  was  hearing  some 
vague  expressions  about  "  assumed  risk,"  "  con 
tributory  negligence,"  "  knowledge  of  danger,"  etc., 
and  the  next  thing  Mathews  knew  he  was  out  un 
der  the  trees,  explaining  to  Russell  the  meaning  of 
a  non-suit, —  impossible  task, —  and  occasionally  al 
luding  to  "  damn  fools  who  sometimes  cut  their 
own  throats." 

A  motion  for  a  new  trial  came  in  due  course. 
It  contained  one  of  the  most  remarkable  affidavits 
ever  executed.  It  was  the  dernier  ressort  or, —  as 
put  by  Bill  Scott,— the  "last  dying  kick." 

The  plaintiff  made  solemn  affidavit  that  actually 
he  never  knew  of  the  existence  of  the  hole  in  the 
track  until  he  was  injured;  that  he  so  swore  on 
direct  examination,  but  that  Mr.  Knox  so  framed 
his  questions  as  to  make  affiant  believe  he  would 
have  no  case  unless  he  testified  that  he  knew  of  the 
hole  all  the  time;  that  Knox  made  him  swear  in 
accurately  and  incorrectly,  "  for  the  wicked  pur 
pose  of  trapping  affiant."  And  Mathews,  as  coun 
sel  for  the  plaintiff,  attached  a  statement  to  the 
affidavit,  in  which  he  most  gravely  concurred. 

Now,  if  there  be  one  cross-examination  that 
meets  with  success,  there  are  ninety-and-nine  which 
produce  disaster.  Once  upon  a  time  an  old  veteran 


262  NISI  PRIUS 

of  that  bar  looked  about  him  and,  observing  the 
wreck  and  ruin  and  slaughter  on  all  sides  follow 
ing  a  cross-examination,  animadverted  on  the  fol 
lies  of  that  subtle  and  dangerous  art.  He  declared 
he  had  the  best  approved  definition  of  cross-exam 
ination.  It  was  this :  Cross-examination  —  A 
thing  to  be  avoided. 

Our  old  friend  Captain  Henry  always  and  per 
sistently  cross-examined.  As  Lowden  often  ob 
served,  he  asked  questions  merely  because,  under 
the  law,  he  had  the  right  to  do  so.  It  was  not  that 
he  had  any  particular  object  in  view,  or  was  cen 
tered  on  any  especial  fact  in  the  case ;  it  was  purely 
because  the  rules  of  practice  permitted  cross-exam 
ination.  No  witness  should  testify  against  him 
and  escape  his  flashing  eye.  The  fact  that  the  wit 
ness  cut  the  ground  from  under  the  Captain's  feet 
at  each  answer  made  no  outward  or  visible  impres 
sion  on  him.  The  lawsuit  was  forgotten.  All 
things  were  merged  or  submerged  in  the  cross-ex 
amination. 

In  the  case  under  trial,  the  exact  date  of  a  given 
event  was  all-important.  Judge  Thompson,  for 
the  plaintiff,  was  making  every  effort  to  show  the 
occurrence  took  place  on  July  12,  18 — .  Captain 
Henry  took  issue  on  this  allegation,  and  was  bend 
ing  all  his  art  and  resourcefulness  to  demonstrate 
the  event  did  not  transpire  on  that  day.  Old  man 
Dotson  was  testifying  for  the  plaintiff.  Answer 
ing  Judge  Thompson,  he  said  the  thing  happened 
on  July  12.  The  Judge  had  not  conferred  fully 
with  the  witness,  and  was  amply  satisfied  with  this 


NISI  PRIUS  263 

unsupported  answer.  He  accordingly  turned  the 
witness  over  for  cross-examination. 

By  Captain  Henry. 

"  You  say  this  thing  happened  on  July  12.  And 
you  recall  it  after  all  these  years?" 

"  That's  what  I  said,"  replied  the  old  man. 

Henry,  not  satisfied  to  drop  the  matter  then  and 
there,  contenting  himself  with  later  arguing  to  the 
jury  the  improbability  of  so  accurate  a  memory, 
proceeded  further  out  on  the  cracking  ice. 

"  How  can  you  remember  a  thing  so  long,  with 
nothing  special  to  attract  your  attention  to  it  at 
the  time,  I'd  just  like  to  know?" 

"  Well,"  said  the  old  man,  "  my  wife  died  the 
day  this  thing  happened,  and  I  guess  a  man  ain't 
very  apt  to  forget  that." 

Henry,  having  fixed  by  a  contemporaneous  event 
the  exact  date  his  adversary  was  attempting  to  es 
tablish,  continued  to  exercise  his  legal  right  of 
cross-examination. 

"  And  you  think,  no  matter  how  many  years 
have  passed,  a  man  can't  be  mistaken  about  the 
date  of  his  wife's  death?" 

"  I  know  I  ain't  mistaken,"  answered  the  old 
man. 

There  were  two  men  on  the  jury  who  had  bur 
ied  their  wives  more  than  twenty  years  before. 
They  recalled  the  hour  and  minute  of  their  deaths, 
to  say  nothing  of  the  day  and  date. 

Judge  Thompson  began  to  impeach  the  defend 
ant.  He  had  a  half  dozen  respectable  witnesses 
who  knew  certain  "  shady  "  things  of  the  defend- 


264  NISI  PRIUS 

ant's  doing.  Of  course,  he  could  not  prove  any 
specific  events  or  acts  or  conduct  on  the  part  of 
the  defendant,  Barrow.  Under  the  rules  of  evi 
dence,  he  was  confined  to  showing  the  defendant's 
general  reputation  for  truth  and  veracity.  The 
fact  that  he  had  swindled  a  neighbor,  plundered  a 
friend,  or  what  not,  could  not  be  established  by 
proof  at  the  instance  of  the  plaintiff.  Henry  com 
bated  and  defeated  all  efforts  by  Thompson  to 
show  any  of  these  specific  instances,  and  then  pro 
ceeded,  by  his  cross-examination,  to  lug  them  all, 
bare  and  visible,  before  the  jury. 

"  Do  you  know,"  asked  Thompson,  "  George 
Barrow's  general  reputation  for  truth  and  veracity 
in  the  community  where  he  resides  ?  " 

"  I  do,"  the  witness  answered. 

"Is  it  good  or  bad?" 

"  Bad." 

"  Take  the  witness,  Captain,"  Judge  Thompson 
would  say,  and  the  Captain  invariably  took  him  — 
cum  onere. 

"  What  do  you  know  about  Mr.  Barrow's  repu 
tation  ?  "  he  began. 

"  I  know  it's  bad." 

"  What  did  you  ever  hear  against  him ;  just  tell 
something,"  he  persisted. 

"Well,"  drawled  the  witness,  "he  burnt  Mr. 
Hedges'  barn.  Everybody  knows  that." 

"  Did  you  see  him  burn  it  ?  "  snapped  the  cross- 
examiner. 

"  No  —  not  me ;  but  he  done  it  —  so  everybody 
says." 

Another  witness  was  called.     He  knew  defend- 


NISI  PRIUS  265 

ant's  general  reputation  for  truth  and  veracity.  It 
was  bad.  His  opinion  was  made  up  from  common 
talk,  rumor,  what  men  said  of  the  defendant. 

"  Who  did  you  ever  hear  discuss  Mr.  Barrow's 
character  or  reputation  ?  "  inquired  Henry. 

"  Lots  of  people,"  he  answered. 

"Name  some;  just  one,  if  you  can,"  insisted 
Henry. 

"  Old  Mrs.  Prior  told  me  she  had  known  Bar 
row  all  his  life,  and  that  he  had  always  handled 
the  truth  powerful  keerless.  Mr.  Burns  said  Bar 
row  would  swear  a  dozen  lies  for  a  dollar  bill.  I 
have  heard  myself  he  signed  a  lie-bill  onct.  I 
could  tell  you  more,  but  I'm  not  interested  in  this 
case.  It  ain't  my  business." 

And  so  the  entire  half  dozen  buried  their  har 
poons  deep  into  the  unseeing  Henry. 

Bill  Scott  said  Judge  Thompson  had  given 
Henry  plenty  of  rope  and  "  he  had  hung  himself  " ; 
Tobias  Mathews  said  "  old  Thompson  ought  to 
divide  his  fee  with  Henry." 

Judge  Cole  observed  that  the  plaintiff  ought 
never  to  have  employed  any  lawyer  at  all.  "  He 
simply  ought  to  have  called  his  witnesses,  and  let 
the  Captain  cross-examine  himself  through  a 
slaughter-house  into  an  open  grave." 

Marcellus  Jumpus  ventured  that  "  you  may  get 
me  on  one  of  them  peremptories,  but  I  ain't  out 
cuttin'  my  throat  from  year  to  year." 

Some  of  these  comments  reached  the  ear  of  the 
Captain.  They  were  as  water  on  the  duck's  back. 
The  very  next  case  he  tried  he  cross-examined  the 
enemy's  witnesses,  as  he  said  "  from  hell  to  break- 


266  NISI  PRIUS 

fast."  He  continued  to  do  so,  and,  if  he  is  yet 
among  the  living,  the  assertion  may  be  confidently 
vouchsafed  he  is  doing  so  even  to  this  day. 

The  jury  completed  their  task  that  day,  Thurs 
day,  at  noon,  and  were  finally  discharged,  with  the 
thanks  of  the  Court.  They  were  told  that  the 
trustee  of  the  jury  fund  did  not  have  the  necessary 
money  with  which  to  pay  them,  but  would  have  it 
shortly.  And  Tom  New  furnished  certificates  of 
their  time,  which  mostly  were  discounted  to  the 
village  claim  shaver.  They  had  one  in  Greenwood, 
as  in  every  other  nook  and  corner  of  this  old 
world,  and  have  had  since  —  and  before  —  the 
days  of  the  money-changers  in  the  temple. 

Friday  afternoon  was  spent  in  hearing  equity 
cases  in  open  court.  Records  were  read,  argu 
ments  heard,  some  causes  decided  from  the  bench, 
others  submitted,  with  "  judgment  see  it,"  to  be 
taken  home  by  Judge  Lowden  for  consideration. 

Saturday  came,  the  eighteenth  and  last  day  of 
the  term.  Those  prisoners  then  in  custody  who 
had  been  indicted  at  this  term  were  brought  into 
court.  They  were  asked  if  they  desired  trials  at 
this  term,  and  all  responded  in  the  negative,  ex 
cepting  one  hapless  youth  charged  with  house- 
breaking.  He  requested  an  immediate  trial.  He 
had  no  counsel.  The  Court  appointed  Mathews  to 
defend  him,  and  a  jury  of  bystanders  heard  his 
plea  of  guilty.  Mathews  pleaded  for  a  light  pen 
alty.  He  referred  to  the  defendant's  youth  and 
surroundings,  concluding  by  saying: 

"  Gentlemen,  this  poor  boy  is  in  a  bad  fix." 


NISI  PRIUS  267 

Old  Judge  Thompson,  sitting  near  by,  looking  at 
the  boy's  attorney,  said  absent-mindedly,  though 
quite  audibly: 

"  That's  a  fact." 

The  court  was  very  nearly  broken  up.  Lowden 
could  not  preserve  countenance  with  which  to  com 
mand  order.  While  everybody  laughed,  Mathews 
grinned,  not  the  least  daunted. 

The  Court  charged  the  jury.  Under  the  defend 
ant's  plea  of  guilty  they  had  no  province  save  to 
fix  the  penalty.  They  retired  and  took  with  them 
the  Court's  instructions  —  and  Judge  Thompson's 
animadversion. 

So  potent  are  small  things  in  directing  larger 
things,  the  jury  never  agreed.  There  was  a  mis 
trial  on  this  plea  of  guilty.  Some  of  the  jury  said 
afterward  that  Judge  Thompson's  remark  made  it 
impossible  for  them  to  convict  that  boy,  who  was 
in  such  "  a  bad  fix."  Mathews,  as  is  the  wont  and 
habit  of  the  human  race,  saw  not  the  wherefore  of 
his  client's  escape,  but  felicitated  himself  on  his 
skill  in  effecting  so  successful  a  result.  He  said 
to  Henderson: 

"  It  strikes  me  you  are  going  some  when  you 
hang  a  jury  where  there  is  a  plea  of  guilty,  eh, 
Tom?" 

To  which  Henderson  replied,  naively: 

'*  Yes,  Tobe,  right  you  are.  The  boy  was  in  '  a 
bad  fix.'  " 

After  which  Tom  New's  sneeze  was  wafted  up 
through  the  swaying  trees  outside. 


CHAPTER  XXIX 

THAT  afternoon,  as  the  sun's  rays  slanted  through 
the  western  windows  of  the  old  court-house  and 
the  tall  oaks  above  murmured  one  to  another,  the 
dockets  were  closed  with  a  great  bang,  and  Judge 
Lowden  ordered  that  court  be  adjourned  "  until 
court  in  course."  The  June  term  of  the  Mecklen- 
berg  Circuit  Court  was  history. 

Old  Uncle  Toby  carried  forth  the  sawdust 
boxes,  swept  the  building,  threw  the  water  from 
the  cooler,  closed  the  windows  and  doors,  and 
spent  long  summer  days  "  fishin'  "  against  the  com 
ing  of  the  next  milestone  in  his  career  —  the 
October  term. 

The  echoes  of  voices  died  away.  Appeals,  elo 
quence,  wit,  humor,  satire,  sarcasm,  logic,  wisdom, 
from  Henderson,  Thompson,  Stevens,  Haggard, 
Beckwith,  Yust,  Brownlow,  Cole,  Knox,  Mathews, 
Henry,  Scott,  and  others  were  "  gone  from  earth 
forever,"  and  the  mute,  silent  old  edifice  stood  be 
neath  the  protecting  branches  of  its  parent  oaks 
in  dignity  and  repose. 

Ah,  old  court-houses  of  the  Commonwealth! 
what  a  world  of  memories,  what  a  wealth  of  his 
tory,  what  myriad  of  thrilling  events,  thy  very  old 
portals  conjure  up!  Man  and  progress  and  wealth 
have  swept  them  all  —  nearly  all  —  away.  Their 
ancient  walls  have  been  razed  and  new  and  splen 
did  temples  reared  upon  their  ruins,  temples  com- 

268 


NISI  PRIUS  269 

mensurate  with  the  march  of  men  toward  perfec 
tion  and  commensurate  with  the  power  and  splen 
dor  of  a  great  Commonwealth.  It  was  the  inev 
itable.  Yet,  to  those  who  love  the  annals  of  Ken 
tucky,  to  those  who  revere  her  history,  at  least  a 
tinge  of  regret  is  unavoidable  when  the  four- walled 
court-houses  where  Clay  thundered  and  Breckin- 
ridge'  sung  are  dismantled ! 

Two  hours  after  Judge  Lowden  had  reached  his 
hotel  he  was  formally  notified  that,  as  a  token  of 
esteem  and  friendship,  he  was  to  be  the  guest  of 
the  Mecklenberg  County  Bar  that  evening  at  a  ban 
quet  arranged  exclusively  in  his  honor. 

"  The  boys,"  said  Judge  Cole,  "  concluded  you 
had  been  coming  over  here  for  years;  and,  except 
ing  that  cane,  they  had  never  done  anything  show 
ing  their  appreciation.  So  be  here  at  Jim  Hanna's 
dining-room  at  nine  o'clock.  We  promise  not  to 
run  into  Sunday." 

At  supper  that  evening  Captain  Henry  was  one 
of  Hanna's  guests.  The  Captain,  freshly  shaven, 
spick  and  span,  took  several  meals  at  Hanna's  ho 
tel  during  each  term  of  court.  Such  a  thing  never 
entered  his  head  during  vacation. 

On  this  occasion  he,  Lowden,  and  the  other 
diners  had  about  concluded  their  meal  when  the 
worthy  Captain  did  a  thing  that  to  this  day,  in 
Greenwood,  is  recalled  to  the  chagrin  and  discom 
fiture  of  James  Hanna,  as  far  as  such  things  are 
possible  with  that  impervious  individual.  A  large 
ham,  pronounced  by  Henry  as  "  strong  as  Holy 
Writ,"  rested  undisturbed  and  undisturbing  at  the 


270  NISI  PRIUS 

head  of  the  table.  The  Captain  had  noticed  this 
ham  at  the  head  of  the  table  in  the  early  days  of 
the  term.  Again  in  the  middle  of  the  term  he  had 
supped  with  Hanna,  seeing  again  the  same  ham, 
and  now  on  this  closing  day  of  the  June  session 
here  was  this  same  venerable  and  patient  ham.  As 
the  distinguished  guest  started  to  leave  the  dining- 
room,  and  was  in  the  act  of  passing  the  head  of 
the  table,  he  seized  a  large  meat  fork  and,  burying 
it  deep  into  the  insensible  hog,  lifted  it  in  the  air, 
and  looking  squarely  at  it,  delivered  himself  thus: 

"  Hold  up  your  right  hand,  please.  Do  you  ac 
knowledge  yourself  indebted  to  the  Commonwealth 
of  Kentucky  in  the  sum  of  one  hundred  dollars, 
to  be  void,  however,  on  your  appearance  here  on 
the  first  day  of  the  next  October  term  of  the  Meck- 
lenberg  Circuit  Court  and  not  departing  without 
leave  of  court?  " 

Having  suffered  the  ham  to  go  "  on  his  own  re 
cognizance,"  the  attorney  passed  out  into  the  hotel 
lobby. 

At  nine  o'clock  that  night  the  Bar  of  Mecklen- 
berg  County  —  every  man  Jack  of  them  —  filed 
into  Hanna's  banquet  hall.  Wars,  controversies, 
bickerings,  quarrels,  fights,  contests,  in  short,  law 
suits,  were  forgotten.  And  here  was  a  company 
of  genial,  jovial,  friendly  comrades  come  to  revel 
in  the  society  of  each  other  —  come  from  the  scene 
of  battle  to  the  banquet  board  of  peace  and  friend 
ship. 

Ah,  you  physicians  and  surgeons  who  carve  on 
each  other  more  than  on  your  hapless  patients, — 


NISI  PRIUS  271 

and  never  leave  off, —  go  and  take  some  sort  of 
physic  that  will  cure  you  of  an  old,  infectious,  con 
tagious  disease  known  as  Envy,  to  the  end  that 
where  two  or  three  of  you  are  gathered  together 
there  may  be  good  fellowship  in  lieu  of  daggers. 
Strange  anomaly!  The  relation  of  lawyers  pro 
fessionally  one  to  another  is  all  combative;  yet 
they  love  one  another,  and  have  since  time  began. 
Doctors,  never  in  combat  professionally,  consist 
ently  and  heartily  despise  one  another;  that  is,  those 
within  the  range  of  competition. 

The  hosts  assembled.  Jim  Hanna  had  thrown 
the  small  tables  together,  creating  one  long  banquet 
/board,  which  terminated  at  right  angles  with  a 
shorter  section  of  tables,  thus  making  a  cross.  At 
the  short  section  sat  the  guest  of  honor,  Henderson 
the  toastmaster,  and  those  who  were  to  respond 
after  dinner. 

The  toasts  were  to  be  a  resume  of  the  term  just 
expired.  The  menu  was  wholesome,  abundant, 
and  provincial.  Of  wine  there  was  none,  although 
a  certain  friendly  jug  reposed  in  No.  18,  where 
Uncle  Toby  handed  to  those  who  dropped  in  water, 
sugar,  et  cetera,  particularly  et  cetera.  Not  at  this 
juncture  accepting  Hanna's  challenge  for  an  argu 
ment  on  the  proposition,  this  narrative  would  not 
be  complete  without  quoting  his  expressed  views  on 
that  subject,  to- wit,  the  jug. 

"  How  the  devil  can  there  be  a  feast  of  reason 
and  flow  of  souls  on  ice  water?  " 

Thus  he  presented  the  argument,  heard  the  same 
and  rendered  his  decision  —  and  provided  the  jug. 


272  NISI  PRIUS 

Touching  the  soundness  of  his  philosophy  we  shall 
have  naught  to  do,  as  these  unpretentious  pages 
are  but  the  purveyors  of  facts,  not  expounders  of 
proper  rules  of  conduct.  Nor  shall  there  be  speci 
fication  of  those  who  entered  No.  18  and  those  who 
did  not.  Some  one  of  our  guests,  in  the  far-off 
future,  in  an  unguarded  moment,  may  aspire  to 
public  office,  and  in  these  halcyon  days  of  your 
dictating  my  system  of  morals  and  code  of  ethics 
the  published  information  would  militate  against 
our  friends'  aspirations.  There  be  quite  a  large 
and  highly  respected  element  of  our  citizenship 
who  would  have  none  of  your  candidate  —  if  he 
visited  Room  No.  18.  Therefore,  those  who  are 
riding  the  wave  shall  have  no  chance  to  sit  astride 
the  crest  of  any  breaker  passing  over  the  prostrate 
form  of  any  of  this  goodly  company. 

So,  friends  of  the  Mecklenberg  Bar,  if  any  of 
you  have  a  desire  to  respond  to  the  beckoning 
Hanna  on  this  festive  night,  have  no  fears  of  the 
holier-than-thou  dictators.  They  shall  not  bring 
this  record  against  you.  Of  course,  if  Captain 
Henry  and  Judge  Cole  should  chance  to  stand  for 
the  same  office  at  the  same  time,  each  would  know 
the  other's  record;  each  knowing,  others  would  not 
know.  In  other  words  in  pari  delicto,  etc. 

But  this  is  obiter  dicta. 

The  guests  reveled.  Hanna  related,  privately, 
an  anecdote  at  his  end  of  the  table,  and  the  roar  of 
laughter  shook  the  very  rafters  overhead.  At  the 
other  end  Bill  Scott  made  an  observation  that  pro 
duced  a  rival  storm,  while  near  the  center  Jumpus 


NISI  PRIUS  273 

vouchsafed  that  he  was  unable  to  reach  a  verdict 
concerning  the  quality  of  a  certain  decoction  in 
Room  No.  1 8  without  more  evidence.  The  merri 
ment  was  fast  and  furious.  Everything  was  com 
petent,  relevant,  material,  and  in  the  record  of  that 
proceeding  there  was  noted  no  objection  or  excep 
tion.  As  Cole  expressly  remarked,  everybody  had 
"  cart  blank." 

When  in  the  discretion  of  the  toastmaster  —  and 
this  is  a  sound  discretion  —  the  time  was  ripe  for 
the  speeches,  he  arose  from  his  seat.  Now,  there 
is  an  art  in  knowing  when.  Many  great  lawyers 
know  when  to  cease  sneaking;  many  great  captains 
know  when  to  charge  the  enemy;  many  great  sing 
ers  know  when  to  cease  singing;  but  few,  very  few 
toastmasters  know  when  to  rise.  On  this  occasion 
Henderson  suddenly  divined  the  psychological  mo 
ment.  When  he  arose  he  was  greeted  with  a  storm 
of  applause  —  and  this  before  he  had  uttered  a 
word.  Now,  he  had  done  nothing  to  provoke  ap 
plause.  It  was  merely  the  psychological  moment. 
He  stood  smiling,  waiting  the  end  of  the  greeting. 
Silence,  anticipatory  silence,  pervaded  the  room. 
Bill  Scott,  down  low  in  his  chair  —  poor  Bill,  he'll 
never  run  for  office  anyhow  —  said  thickly,  but 
audibly : 

"  See  the  skonquering  hero  come." 

Henderson  was  driven  to  cover.  Quiet  being 
finally  restored,  he  again  arose  and  was  again 
greeted  with  liberal  applause.  He  made  a  speech. 
He  explained  the  object  of  "  the  evening  festivi 
ties  "  and  paid  a  glowing  tribute  to  Judge  Lowden. 


274  NISI  PRIUS 

At  the  height  of  one  of  his  most  flowing  flights 
Brownlow's  deep  voice  crushed  things  when  he 
said  "Slush!" 

However,  Henderson  got  through  somehow. 
He  read  the  list  of  orators  for  the  occasion,  with 
their  respective  subjects.  This  feature  of  the  ban 
quet  was  unique.  No  man  was  to  know  his  sub 
ject  until  assigned  to  him  by  the  toastmaster  when 
called  upon.  Unique,  but  altogether  appropriate, 
for  the  memory  of  man  runneth  not  to  the  time 
when  post-prandial  orators  ever  spoke  on  the  sub 
jects  assigned  to  them.  As  these  speeches  were  to 
review  and  perpetuate  the  history  of  the  June  term, 
the  selection  of  topics  was  confined  to  such  sub 
jects  as  would  effectuate  that  result.  It  was  this 
that  Tom  Henderson  read: 

SUBJECTS  SPEAKERS 

The  Russell  case  .  .  .  Mr.  Jumpus 
Old  Man  Judson  \ 

Tyson  who  lived    [  •     Captain  Henry 

on    Pond    Creek     > 

Two  cows Judge  Cole 

Bluestone  ....  Colonel  Stevens 
In  a  Bad  Fix  .  .  .  .  T.  Mathews 
Some  Fluids  I  Have  Known  .  J.  Hanna 
Our  Bar  Association  .  Judge  Thompson 
$9,878.00  (Dockery)  .  Judge  Beckwith 
Knowing  How  ....  Tom  New 
An  Ear  to  the  Ground  .  .  Jas.  Higgins 
The  Jury  (Not  Present) .  Geo.  Brownlow 
Some  Cross-examinations  Wm.  Scott 


NISI  PRIUS  275 

To   err   is   human,    -\ 

to  set  aside  the    [  •     JudSe  Lowden 
verdict,  divine         ) 

The  fact  that  there  were  to  be  thirteen  speeches 
made  nobody's  flesh  creep.  Scott  removed  any 
feeling  of  anxiety  on  the  part  of  the  superstitious 
when  he  said  there  would  be  only  twelve  toasts  and 
one  oration ;  or,  as  he  put  it,  "  Jim  Higgins  will 
deliver  an  orashun,  the  smiling  valleys  of  Meck- 
lenberg  County,  the  blue  vault  of  heaven,  the  un- 
derrified  Demogrocy  of  this  distrig,"  and  his  head 
inclined  to  the  table,  uttering  no  more  of  the  Hon. 
Higgins'  figures  of  speech. 

And  it  was  thus  this  June  term  of  the  Mecklen- 
berg  Circuit  Court  came  to  be  numbered  among  the 
things  of  the  past.  The  speeches  were  all  made. 
The  official  stenographer  was  not  present  and  it 
would  be  an  injustice  to  those  participating  to  at 
tempt  to  quote  from  memory.  The  reader,  being 
familiar  with  the  speakers  and  their  subjects,  may 
form  his  own  conception  of  them. 

When  the  last  cigars  were  lighted  and  the  June 
night  was  far  spent,  the  goodly  company  bade  fare 
well  one  to  the  other  —  for  some,  a  long,  long  fare 
well  ;  for  others,  until  the  October  term,  which 
would  follow  in  the  golden  autumn,  when  the  frost 
had  kissed  the  hillsides  into  a  thousand  colors  and 
green  meadows  would  be  brown  and  sere,  and 
roses  and  violets  withered  and  lifeless  —  gone  to 
sleep  until  some  other  June. 

THE   END 


UNIVERSITY  OF  CALIFORNIA  LIBRARY 

Los  Angeles 
This  book  is  DUE  on  the  last  date  stamped  below. 


Form  L9-25m-9,'47(A5618)444 


UNIVERSITY  of  CALIFORNIA 

AT 

LOS  ANGELES 
LIBRARY 


PS         Browder  - 
1124     Ilisi  prius 
B81n    -  


A" "•"     nil  I II  I    III 
001372590 


PS 
1124 

B81n 


